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TMI Blog2019 (12) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter is pending before this Bench on the same issue against the same bill of entry. Thereafter, he proceeded to decide the show cause notice issued by DRI against the same bill of entry and the same machinery proposing a third classification. The findings of the Commissioner is also agreed upon that the machinery in question is an integrated plant and is to be classified as Dairy Product in view of the Section Notes 3, 4 and 5 for the Section XVI of Custom Tariff. Appeal dismissed - decided against Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal is not covered by the litigation policy, the appeal has been restored. 5. Ld. Consultant for the respondent submits that after the Order-in- Appeal has been passed by the Commissioner (Appeals) and the Revenue has filed an appeal before this Bench. Before the Revenue's appeal has been taken up by this Bench, Directorate of Revenue Intelligence (DRI) issued another show cause notice on exactly the same issue proposing a third classification of the product concerning the same bill of entry under CH 8419. This show cause notice proposing altogether a different classification was dropped by the Ld. Commissioner of Customs, Visakhapatnam vide Order-in-Original No. VIZ-CUSTM- 000-COM-004-14-15, dated 30.10.2014. In this Order, the Commissioner has held that the assessee has imported the entire machinery as a plant and not individual parts and held that the entire machinery is correctly specified by the appellant in their bill of entry No. 771479, dt. 25.02.2010 under Customs Tariff Heading 843420000 as Dairy Machinery. Accordingly, he dropped the entire demand made in the show cause notice issued by DRI, amounting to ₹ 77,65,931/- and also dropped the penalties for confiscat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... butter into required commercial shapes is classifiable under heading 84.22 of the Customs Tariff Act, 1975 and not under heading 84.34. He also relies on the following case laws: a) Yakult Danone India Ltd. vs. Commissioner of Customs, Mumbai-I [2017(357) ELT 691 (Tri.-Mumbai)] b) HMT Limited vs. Commissioner of Central Excise & Customs, Aurangabad [2007(214)ELT 10 (S.C.)]. 8. We have considered the arguments on both sides and perused the records. It is rather an unusual situation where the same bill of entry was assessed by the Revenue under 8422 3000 against the assessee's classification under 8434 2000 and the matter has been adjudicated and the appeal was decided by the first appellate authority and further appeal was pending before this Bench. Meanwhile, another arm of the Department i.e. DRI came to a different conclusion that the machinery is classifiable under 8419 and accordingly issued a show cause notice challenging the classification while the appeal is pending before this Tribunal. The second show cause notice was also decided by the Commissioner who has also recorded that the earlier assessment of the bill of entry as well as the order of the Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsists of two tanks for acid and caustic store. Both the tanks are made up of acid proof Stainless Steel. These tanks are provided with level controlling systems. CIP equipment is supplied with a dosing pump to pump the concentrated chemicals. The pump is of diaphragm pump. The equipment consists of necessary control equipment to adjust the washing durations by means of valves, instruments. All the above equipments are inter-connected with individual Programmed Logical Control (PLC) and can be operated with single PLC. 21.2 The Pouch packing machine consists of one EA-10800 Aseptic Pouch packing with H2O2 bath, Hot Date Stamp device, a Pouch pre-cut device for tear off easy opening and one Pouch Receiving Conveyors etc. 22. Milking machines and dairy machinery are covered under heading 84.34 of the Harmonized Commodity coding system. This heading covers mechanical milking machines, and other machinery, whether for farm or industrial purposes, used in the treatment of milk or for converting into other dairy products. For the purpose of clarity, Notes under Chapter 84 are elaborated as below: (a) The explanatory notes XVI-84-34-2 (Explanatory Notes Fourth Edition (2007) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the headings of Chapter 84 or 85. Further it is seen from the General Notes of Harmonized Commodity Coding System, Explanatory Notes (4th Edition 2007) under Section XVI, under "(VII) Functional Units" it is specified that "This note applies when a machine (including a combination of machines) consists of separate components which are intended to contribute together to clearly defined functioned covered by one of the headings in Chapter 84 or more frequently, Chapter 85. The whole then falls to be classified in the heading appropriate to that function, whether the various components for (for convenience or other reasons) remain separate or are interconnected by piping (carrying air, compressed gas, oil etc.) by devices used to transmit power, by electric cables or by other devices. For the purpose of this Note, the expression "intended to contribute together to a clearly defined function" covers only machines and combination of machines essential to the performance of the function specific to the functional unit as a whole, and thus excludes machines or appliance fulfilling auxiliary functions and which do not contribute to the function of the whole." 12. For these reas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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