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TMI Blog2016 (9) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... resolve whether the decision of the Tribunal in re Purewall & Associates Ltd is the correct proposition of law or that of the view expressed in re Bajaj Auto Ltd. - C/442 to 445/2004 - A/88825-88828/16/CB - Dated:- 28-7-2016 - Shri MV Ravindran, Member (Judicial) and Shri C J Mathew, Member (Technical) Shri MH Patil, Advocate for the appellant Shri K Puggal, Asstt. Commissioner (AR) for the respondent ORDER The issue in dispute in these four appeals against common order no. 13-16/2004/NCH dated 7th February 2004 of Commissioner of Customs (Appeals), Mumbai - I is that of classification of press tool dies imported by the appellant, M/s Mahindra Mahindra Ltd, under heading 82.05 or 846694 of the First Schedule to the Customs Tariff Act, 1975 and 84.45/48 of the erstwhile Customs Tariff and the applicability of countervailing duty (CVD) under Tariff Item 51A or Tariff Item 68 of the Central Excise Tariff. Departmental authorities favoured Customs Tariff Heading (CTH) 82.05 and TI 51A. Relying almost entirely on the decision of the Tribunal in New Haven Steel Ball Corporation Ltd v. Collector of Customs [1991 (56) ELT 761 (Tribunal)] and Bajaj Auto Ltd. v. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and parts of the jeep by fitting dies and tools to a machine known as press which exert appropriate pressure on the sheet metal. The die provides the shape while the press produces the required pressure. Thus with the same press machine and different tools/dies it is possible to form different shapes. 8. The classification under 82.05 decided upon by the assessing officer is: Interchangeable tools for hand tools, whether or not power-operated, or for machine-tools (for example, for pressing, stamping, punching, tapping, threading, drilling, boring, broaching, milling, turning or screw driving), including dies for drawing or extruding metal, and rock drilling or earth boring tools. 9. On the other hand, importer claims classification 84.45/48 described as: parts and accessories suitable for use on solely or principally with the machines of heading nos. 84.56 to 84.65, including work or tool-holders, self-opening die-heads, dividing-heads and other special attachments for machine-tools; tool-holders for any type of tools for working in the hand and of 8466.94 being for machines of heading no. 84.62 or 63. 10. According to the appellant press too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in Bajaj Auto Ltd. v. Collector of Customs, Bombay [1994 (74) ELT 312 (Tri.)]. 13. Appellant is aggrieved that their claim was rejected by the lower authorities without considering their submissions. According to Learned Counsel, the dies/tools cannot be disaggregated from the machines for pressing because they cannot work independently and that tools or dies of heading 8207 performs one identified function whereas their imported tools act simultaneously on the same metal sheet. It was also contended that note 2 of Section XVI makes this abundantly clear. Claiming that General Rules for Interpretation require that the more specific description would prevail over the more general Learned Counsel contends that parts of the press machines is the appropriate entry. 14. In re Prince Metal Works, the Tribunal held that dies used in press machine for manufacture of motor vehicle parts are to be classified as parts of the machine with which they are intended to be used. In re Jay Engineering Works Ltd it was held that only where a tool/die can be used for more than one purpose it would be classifiable under 84.59 of the Tariff prior to 1986. The proposal of Revenue to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence in shape produces differently shaped part - in this case of a motor scooter. 6. There is another aspect of the matter. By equating interchangeability with replacement, each die or similar tool which should otherwise be classifiable under Heading 82.05 would fall for classification elsewhere and the net result would be that Heading 82.05 would be rendered nugatory and surplus. On the argument that each one of a set of dies produces different parts and the die would, therefore, not be interchangeable with each other, they would not fall for classification under Heading 82.05. It would be observed that if one die is imported it would be classifiable under Heading 82.05 for the reason that it is not interchangeable; if more than one identical die is imported, they would be classifiable under Heading 82.05. To base classification on the ............. of goods imported is obviously absurd. From this perspective too, it is Heading 82.05 which would be more appropriate. On a reading of the decision in the Purewals case it is clear that the Explanatory Notes were not brought to the notice of the Bench. This point has, therefore, passed sub silentio. For the reasons discussed ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come of the appeal in re Purewall Associates and Delhi Kanodia Tin Drum Factory v. Collector of Customs thus: Rejection of the appeals, therefore, does not necessarily confirm the correctness of the classification decided in those decisions. The impact of dismissal of appeals on impugned orders has been laid down clearly by the Hon ble Supreme Court in Kunhayammed v. State of Kerala [2001 (129) ELT 11 (SC)] and by the Larger Bench of the Tribunal in S. Kumar s Ltd. v. Commissioner of Central Excise, Indore [2003 (153) ELT 217 (Tri.-LB)]. We, therefore, respectfully disagree with that peremptory disregard enunciated in re Bajaj Auto Ltd of Purewall Associates and Delhi Kanodia Tin Drum Factory v. Collector of Customs. 18. The dispute has its genesis in the differing rates of duty. That these are different is, undoubtedly, attributable to deliberate design for a desired outcome. Neither side has put forth propositions on that count and for us to speculate, with insufficient information, would be a dangerous foray into the realm of policy formulation. We cannot rule out a re-engineering of the policy and the existing contradiction of interpretation supra may wel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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