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2019 (11) TMI 257

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..... appellant. Appeal allowed - decided in favor of appellant. - Hon ble Mr. Anil Choudhary, Member (Judicial) And Hon ble Mr. Bijay Kumar, Member (Technical) Shri B L Narsihman, Advocate - for the appellant Shri Sunil Kumar, Authorized Representative - for the respondent ORDER Bijay Kumar: 1. The Present appeal is filed against the Order dated 18/10/2018 passed by the learned Commissioner (Appeal), vide which he has sustained the assessment order dated 13/01/2017 passed by the Deputy Commissioner of Customs, (Gr), ICD Tuglakabad, New Delhi confirming the demand of ₹ 1,95,134/-. Being aggrieved with the impugned order the Appellant is before us in this Appeal. The appellant has imported a consignment of gear reduction blank (hereinafter referred to as impugned goods ) from overseas supplier from China vide Bill of Entry No. 76447685 dated 30/11/2016 at ICD, Tuglakabad. The Appellant classified the impugned goods under tariff item 8483 40 00 as Gears and gearing, other than toothed wheel, chain sprockets and other transmission elements presented separately. This classification of the impugned goods was not accepted by the appraising group and the query was raised as to why the .....

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..... ds are parts of steering columns but their classification under tariff heading 87089400. 2.2 The learned Advocate further submitted that Section Note 2 to Section XVII is not applicable in the case at hand. As the Department solely relied upon the exclusion made under Section Note 2 (e) to Section XVII, which states that only those articles of chapter heading 8443 shall be excluded from this Section, which constitutes the integral part of the engine or motor. Therefore, they are correctly classified under Customs Tariff Heading 8708. In this regard, it was submitted that the Department has mis-understood the scope of Section Note 2 to Section XVII of Customs Tariff Act to the extent that even though the impugned goods are excluded by virtue of Section Note 2 (e) which does not mean that it is included in chapter 87. 2.3 It is also submitted that Section Note 3 to Section XVII shall not apply in the case at hand as only those parts which are not suitable for use solely or principally with article of Section XVII shall not be covered under the Chapter XVII the impugned goods are solely or principally be used with article of chapter 87 the exclusion given under Section Note 3 shall no .....

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..... Note placing reliance in the case of Commissioner of C. Ex. Vs. Best Cast (P) Ltd. [2001 (127) ELT 730 (Tri.-Chennai)] 2.6 Learned Advocate further submitted that the reliance placed by learned Commissioner (Appeal) in the impugned order in the case of M/s Telco Limited vs. Commissioner of Central Excise, Pune reported at [2006(105) ELT 151 Tri-Mum] is not correct to the extent that Rule 3(a) of GI Rules read with HSN Explanatory Note was not considered, and therefore, the decision cannot be relied upon to conclude the classification of impugned goods. 3. The learned Authorised Representative for the Revenue, however, supported the impugned order and also submitted a written submission dated 08/05/2019. In the written submission it was submitted the classification of the impugned goods should be heading 8708 of the Customs Tariff Act placing reliance on the Section Note of Section XVI and XVII along with the HSN Explanatory Notes. It was also submitted that the impugned goods are not classifiable under chapter heading 84/83 as gear contrary to the provisions of Note 1(l) of Section XVI in terms of which article of Section XVII are included from the purview of Section XVI. A relianc .....

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..... sified under heading 8483.00, parts thereof as per Notes have to be classified thereunder and not as parts of Motor vehicle under Chapter 87 as proposed in the Revenue appeal. The parts are not understood as parts of motor vehicle but are understood as parts of gear box, and therefore, not only by reading of interpretation of Chapter Notes as conducted by Commissioner (Appeals) but also by commercial parlance, the goods will get classified as parts of gear box under Heading 8483.00. Therefore, we find no reason to uphold the present appeal. This order was challenging by the Revenue before Hon‟ble Supreme Court in which dismissed the appeal upholding the order of the Tribunal. Thus the order of the Tribunal merged with the order of Hon‟ble Supreme Court and attained finality 8. We also find that in case of Eimco Elecon (India) Pvt Ltd. vs Commissioner of C. EX., Vadoara it was held that the pinion manufactured as component of air motor is rightly classified under heading 8443 of Central Excise Act. As against heading 7226, 8607, 8708 of 8714 of Central Excise Tariff. The relevant portion of the order which is para 5 which is reproduced as under; 5. We are unable, on exam .....

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..... s. Venkatachalapathy Industries, 1999 (106) ELT 176. In these cases crank shafts tappet shafts, gear, wheels, pulleys and picking shafts are to be classified under heading 84.83 of the Central Excise, Tariff being specifically covered therein and not as parts of accessories of the maschines. In view of the above decisions of the Tribunal, we find no infirmity in the impugned order. The appeal filed by the Revenue is rejected. 10. We also considered the decision of Teleco Ltd (supra) wherein it was held as under; 2. In the instant case, there is evidence that the impugned goods are not integral parts of engines or motors but are parts of motor vehicles. We also note that the appellants are paying duty on the impugned goods as parts of motor vehicles for the period subsequent to the period in dispute. We also note that in the case of Mahindra Mahindra Ltd. v. Collector of Customs - 1986 (26) E.L.T. 269 (Tri.), Tribunal had earlier held that goods similar to the impugned goods to be classifiable under Chapter 87 applying the said Section Note 2(e) of Section XVII and Section Note 1(k) of Section XVI of the Customs Tariff Schedule which is similar to the Excise Tariff Schedule. The con .....

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