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TMI Blog2012 (3) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... directed that the petitioner's goods be cleared under heading no.84.36 of the Schedule to the Central Excise Tariff. Pleadings were completed and on 17th July, 1992 Rule DB was issued and the interim order confirmed. The writ petition was dismissed in default on 15th October, 1992. An application for restoration was filed in the year 1994. The writ petition was again dismissed in the year 1995. The petitioner again applied for restoration. On 5th August, 2002 the petitioner was called upon to, in the first instance, satisfy this Court as to how the remedy by way of statutory appeal to the Customs, Excise and Gold (Control) Appellate Tribunal now Custom Excise Service Tax Appellate Tribunal (CESTAT) is not an efficacious remedy. The matter was thereafter at the instance of the parties adjourned from time to time. The writ petition was again dismissed in default on 7th March, 2006 but was yet again restored. On application of the petitioner, early hearing was allowed. However when the writ petition came up for hearing the counsels for both parties requested adjournment. In the circumstances aforesaid, request for adjournment was denied and judgment reserved with liberty to the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the order dated 20th September, 1991 of Collector of Central Excise Bombay, taking the same stand as the Excise Authorities at Bangalore. 7. The petitioner filed an additional affidavit dated 21st January, 2002 in which it is inter alia stated The petitioner's contention is that the poultry keeping equipment used by the end-users who are poultry farmers, is exempt from excise under 84.36 of the Central Excise Tariff Act. That the petitioner has always clearly maintained the distinction of end-users by claiming exemption under 84.36 only when the poultry keeping equipment is sold to a poultry farmer. Under other circumstances, when the wire mesh is used for other purposes are sold for other purposes, the entire excise duty has been deposited in accordance with law. This distinction maintained by the petitioner is evident from copies of a number of invoices which are collectively annexed as Annexure P/12 (colly.). These invoices relate to the period 1990-91, 1991-92 and 1992-93. By way of illustration, a sale made to a poultry farmer, M/s Supreme Poultry Pvt. Ltd. Erode, Tamil Nadu under Invoice No.1743 dated 24.10.1991 is treated as exempted from payment of excise duty a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, the petitioner in its written arguments has relied on:- (a) State of U.P. v. Harish Chandra (1996) 9 SCC 309; (b) Dr. Bal Krishna Agarwal v. State of U.P. (1995) 1 SCC 614; (c) Siemens India Ltd. v. UOI 2002 (140) E.L.T. 62 (Del); and, (d) Durga Enterprises (P) Ltd. v. Principal Secretary, Govt. of UP (2004) 13 SCC 665. to contend that writ petitions impugning Trade Notices are maintainable and the rule of exclusion of writ remedy owing to alternative remedy is not an absolute rule. Again merely for the reason of the petition having remained pending in this Court for long, we ignore the said plea also to proceed on merits of the case, though we may notice that a Division Bench of this Court in Internsil P. Ltd. v. Union of India (2007) 207 ELT 500 has held that when this Court is not found to have territorial jurisdiction and alternative remedy of appeal is available, merely because the writ petition has remained pending for long, in that case for ten years, is no ground to entertain the same. 12. The star argument of the petitioner on merits is that benefit of exemption under heading 84.36 was given to M/s Weld Fuse Pvt. Ltd., Hyderabad and the appeal pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very principle of classification to deny it the parentage and consign its residuary item" is relevant here. I observe that the impugned goods are specially designed for the making of cages to form the battery in poultry keeping and the goods cannot be marketed for any other use and are called in commercial parlance as poultry keeping machinery parts only and no evidence has been placed on record to prove otherwise by the revenue. Hence, in view of the Hon'ble Supreme court judgment in the case of G.S. Auto International Ltd. v. Collector of C. Ex., Chandigarh wherein it was held that "It needs to be ascertained as to how the goods in question are referred to in the market by those who deal with them, be it for the purposes of selling, purchasing or otherwise", the classification under the said CHSH 8436 appears to be correct. The function of the impugned goods is only for poultry keeping, meaning rearing, feeding, cleaning, egg collecting and other functions, which are fulfilled in combination with other components such as feeders and egg collectors and hence, in accordance with the section notes 4 to Section XVI of the Central Excise Tariff Act, 1985 also, the impugned goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or brooders" and the HSN explanation to CHSH 8436 given at page No. 1318-HSN states that the term "poultry incubators or brooders" with relevance to the impugned goods includes among other equipment "Rearing and laying units or "batteries", large installations equipped with automatic devices for filling the feeding troughs, cleaning the floors and collecting the eggs". 16. We are unable to agree with the reasoning aforesaid. It seems to have escaped CESTAT, Bangalore that when CHSH 8436 at page 1318 SHN referred to batteries it was in the context of large installations equipped with automatic devices for filling the feeding troughs, cleaning the floor and collecting the eggs. A manufacturer of such batteries which are not merely a series of cages but are also equipped with automatic devices as aforesaid would definitely qualify as machinery and the Wire mesh partition used in such cages would be part of machinery and would be exempt under heading 84.36. However a manufacturer of Wire mesh partitions and one of the uses of which Wire mesh partition may be for assembly as cages, cannot claim exemption under heading 84.36 (supra). 17. What is significant is that heading 84.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do move, do not move the one with or upon the other in interdependent action. 'Machinery' was further described as meaning some mechanical contrivances which by themselves or in combination with one or more other mechanical contrivances, by the combined movement and interdependent operation of their respective parts generate power, or evoke, modify, apply or direct natural forces with the object in each case of effecting definite and specific result. The tank and its supporting structure were not found to satisfy the said definition. 20. A Full Bench of the Allahabad High Court in Engineering Traders v. State of U.P. 31 STC 456 held 'machinery' as meaning instruments designed to transmit and modify the application of power, force and motion. 'Machinery' was held to include all appliances and instruments whereby energy or force is transmitted and transformed from one point to another. 21. A Division Bench of the Karnataka High Court in D.B. Bhandari v. State of Mysore was called upon to decide whether handlooms were machinery, for spare parts of handlooms to fall as accessories to the machinery. It was held that the mode or manner in which power is fed or force is applied s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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