9911796707
TMI Blog2019 (11) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... 1985 - appeal allowed - decided in favor of appellant. - Appeal No. E/60892/2019, E/60893/2019 - Order No. 60744-60745/2019 - Dated:- 4-9-2019 - HON BLE Mr. ASHOK JINDAL, MEMBER (JUDICIAL) AND HON BLE Mr. C L MAHAR, MEMBER (TECHNICAL) Shri Vikrant Kackaria, Advocate for the Appellant Shri G. M. Sharma, Authorised Representative for the Respondent ORDER Per: Mr. Ashok Jindal The appellant are in appeals against the impugned order. 2. The facts of the case are that the appellant are manufacturing of food processing machines and its parts and automobile components for JCB, elevator and conveyors etc. and classifying these goods under heading No. 8437 as machinery used in Milling Industry where the tariff rate is nil, but the department these goods are classifiable under heading No. 8428, as other lifting, handling, loading or unloading machines (for example Lifts, escalators, conveyors etc. ). On the basis of this, the impugned order was passed, classifying the goods under Heading No. 8428 and alongwith interest and imposed penalty under Section 11 AC of the Act. Again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12% 8428 20 Pneumatic elevators and conveyors: Conveyors: 8428 20 11 Belt conveyors u 12% 8428 20 19 Other u 12% 8428 20 20 Pneumatic elevators u 12% Other continuous-action elevators and conveyors, for goods or materials: 8428 31 00 Specially designed for underground use u 12% 8428 32 00 Other, bucket type u 12% 8428 33 00 Other, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8437 90 90 Other kg. Nil The case of the Revenue is that as per HSN Explanatory notes to Chapter Heading No. 8437, the machine used in milling industry. However, the heading does not cover conveyors and elevators. Therefore, the revenue wants to classify conveyors and elevators under heading No. 8428. On the other hand, the contention of the appellants is that as per HSN Explanatory notes itself these machines are feeders and same is covered under explanatory notes as feeder machines designed to ensure local and even flow of grain to the crushing rollers. 7. We have also seen the Section Note 3,4,5 to Section 6 of the Central Excise Tariff Act which are expected herein below:- 3. Unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chine. Therefore, the department cannot place reliance upon the explanatory notes to change the classification of the said items. 7. We further take a note of the fact that in the case of Commissioner of Central Excise, Kanpur vs. Rationale Iron Steel Co. (supra), this Tribunal has categorically observed that explanatory notes have no force of law and they are only for guidance whereas the findings of the Ld. Commissioner (Appeals) is on the basis of Central Excise Tariff Act, 1985 enacted by Indian Parliament. Therefore, it was held that the ground raised by the Revenue is not sustainable. Admittedly, in the case in hand, the revenue is heavily relied on the HSN explanatory note to Section 16 of the Central Excise Tariff Act to say that the conveyors and elevators are classifiable under heading No. 8428 is not applicable to the facts of the present case. We further take a note of the fact that explanatory note itself classifying feeder machines designed to ensure local and even flow of grain to the crushing rollers as classifiable under chapter heading No. 8437. The main function of the machines, these conveyors and elevators is take the grain from one machine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra). Moreover, in the case of Eminence Equipments Pvt Ltd. (supra) this Tribunal has not considered the chapter note 3, 4 and 5 of Section 16 of Central Excise Tariff Act, 1985. Therefore, on that account also the decision of the said case is not applicable in the present case. 10. Moreover, the appellants have produced various technical opinions as well as the data from Customs and Central Excise Department wherein the importer as well as exporter of elevators and conveyors used specifically designed for rice milling have been classified under heading No. 8437 of the CETA. Therefore, we hold that the decision in the case of Eminence Equipments Pvt Ltd. (supra) is not applicable to the facts of the present case. 5. In view of the above, we hold that the conveyors and elevators specifically manufactured as the part of rice milling machinery alongwith other machinery of rice by the appellant merit classification under chapter heading No. 8437 of CETA, 1985. The impugned order deserves no merit hence set-aside. Consequently, the demand of duty against the appellant alongwith interest is not sustainable. Consequently, no penalty is imposable on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
