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TMI Blog2015 (2) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, having given this finding, the Commissioner has gone on to say that these items are not essential part of the machinery in absence of which the whole machinery would come to stand still and that the same can be utilized to transport not only rice but anything else also. However, it is seen that the appellant have produced opinion from technical experts - College of Engineering, Pune and St. Lango Institute of Engineering and Technology wherein it has been opined that these machines are specially designed for handling and processing of food grains and that as per the characteristics of the raw material used, component and fabrication techniques used for manufacture of grain dischargers and grain feeders, these are not fit for hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st thereon under section 11AB and beside this, has imposed penalty of equal amount on them under section 11AC and penalty of Rs. One Crore on Shri Nirdosh Bali, Managing Director of the appellant company. Against this order of the Commissioner, these two appeals have been filed along with stay application. 2. Heard both the sides in respect of stay application. 3. Shri B.L. Narsimhan, Advocate, the Ld. Counsel for the appellant, pointing out to Commissioner s findings in para 4.2. of the impugned pleaded that in terms of Commissioner s own findings, the goods, in question, are the conveyors and elevators which are used for transportation of rice in a rice mill from one stage to another and they can be horizontal as well as vertical as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n question, under heading 8428 and confirming duty demand and imposing penalty is not correct, that the appellants have strong prima facie case in their favour and hence the requirement of pre deposit of the duty demand, interest and penalty may be waived for hearing of the appeal and recovery thereof may be stayed. 4. Sh. Pramod Kumar, Ld. Jt. CDR, opposed the stay applications by reiterating the findings of the Commissioner in the impugned order. Shri Pramod Kumar also pointed out to para 15 of the Show Cause Notice according to which from the description of the equipment and its function it is clear that grain feeders and grain dischargers are not designed to be permanently attached either to each other or to a common housing etc., of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r manufacture of grain dischargers and grain feeders, these are not fit for handling heavy and abrasive type material like sand, coal lime etc. It is also seen that same machinery when imported into India are being classifiable by different Customs Houses as milling machinery under heading 8437. In view of this we are of the prima facie view that the goods, in question, are correctly classifiable as milling machinery under heading 8437 and as such the impugned order is not correct and the appellant have strong prima facie case in their favour. The requirement of pre-deposit of duty demand, interest and penalty by both the Appellants is, therefore, waived for hearing of their appeals and recovery thereof is stayed. The stay applications are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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