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TMI Blog2011 (3) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... l plant also includes par-boiling and drying plant in the appellants establishment that itself cannot transform the machinery or the plant comprising of par-boiling and drying machinery into a composite machinery forming part of the rice mill. Obviously the Commissioner in the order dated 9th August, 2010 on the basis that there was new material placed before the Commissioner to justify a different view from the one taken in relation to the earlier period has accepted the classification as proposed by the assessee which is contrary to the view taken in the earlier order for the earlier period - therefore, no infirmity in the classification for the product in question under Chapter Heading 8419 - Decided in favor of the assessee X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter taking into consideration the Board Circular No. 924/14/2010-CX., dated 19th May, 2010 accepted the contention of the appellants and classified the same product under Heading 8437 while rejecting the contention of the department about the classification of the said product under Heading 8419. He further submitted that the similar view has been taken by the CESTAT, Bangalore Bench in unreported decision in the matter of M/s. SKF Boilers & Driers (P) Ltd. v. CCE, Mangalore in Appeal No. E/967/2009 decided on 18th of October, 2010 = 2011 (264) E.L.T. 425 (Tri. - Bang.). He further submitted that the Board while issuing the Circular had taken note of the fact that par-boiling machine and driers form part of the composite machine that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the HSN and at pages 1235 it has been mentioned that Chapter Note 2 which is known as rule of precedence for heading 8401 to 84.24 applies only to machines considered as whole. Composite machines or multifunction machines are required to be classified in accordance with Note 3 and 4 of Section XVI. As per this clarification available in the HSN, the parboiling machine and dryers which are part of composite machine (rice mill) would be correctly classified in terms of Section Notes 3 and 4 and therefore, the correct classification should be under heading 8437. Further, grain dampening machine has been excluded from the purview of heading 8419 and placed under heading 8437. One of the functions of Rice parboiling machinery is soaking of grai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activity. Very first sentence of the above observations clearly reveals the same. The second sentence of the said observation further clarifies that "thus such a plant …….". In other words, the Board was dealing with the circumstances arising out of the cases where the plant comprised of composite machinery consisting of par-boiling machinery, drier plant and rice mill. The Board was not dealing with a situation arising out of independent functioning of each of those plants or machineries. 7. As far as the case in hand is concerned, the impugned order from para 4.1 till 4.8.1 elaborately refers to the materials on record in relation to the description and functioning of each of the part of the plant of the appellants as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was party (Shri Justice R.M.S. Khandeparkar) the decision was delivered on concession made by Departmental Representative. It was clearly recorded in para 4 of the said order that the learned Special Counsel appearing for the respondent has fairly conceded that taking into consideration the Board Circular which is binding on the Department, the appellants were justified in contending that the product in question was classifiable under CETH 8437. Apparently the decision was delivered on concession made by the representatives of the parties and such a decision cannot lay down any binding president. The said decision being solely on the basis of concession made by the Departmental Representative without any analysis of the point in issue, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proceedings arisen out of the said order. It will be too pre-mature for us to comment on those issues in this proceeding. However, suffice to observe that on detailed analysis of factual matrix before the Commissioner in relation to the period in question under the impugned order which has not been challenged on the basis of any material which would counter the same, it will be difficult to accept the contention of the appellants that merely because for the subsequent period the Commissioner has taken a different view, the same would be sufficient to interfere in the impugned order. Needless to observe that on analysis of the materials on record, we are not at all convinced with the observations made by the Commissioner in the subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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