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TMI Blog2022 (8) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, the coordinate Bench of the Tribunal (South Zonal Bench of the Tribunal, Bangalore), in the case of VST TILLERS TRACTORS LTD. VERSUS COMMR. OF C. EX., BANGALORE [ 2005 (5) TMI 537 - CESTAT, BANGALORE] has also held that Power Tillers are classifiable under CTH 84.32 of the Central Excise Tariff (which is pari materia to CTH 84.32 of the Customs Tariff). From the product literature of various manufacturers of power tillers/rotary tillers sold internationally under various brands, submitted by BTL, it is also evident that rotary tillers and power tillers are self same goods. To similar effect is the declaration dated December 16, 2019 of the Chinese manufacturer of the power tillers imported by BTL. The said declaration clarifies that the primary function of a power tiller is nothing but a modified rotary tiller, inbuilt with an engine as source of power. The contention that power tillers are different from rotary tillers are based on erroneous premises and thus unsustainable. Power Tillers imported by the importers herein are therefore entitled to the benefit of concessional rate of basic customs duty of 2.5% in terms of the said notification, as per Sl. No. 399(x ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty rate of 7.5%. 3.1.1 Being aggrieved with the said assessment orders of the Assistant Commissioner, BTL preferred appeals against the same before the Commissioner of Customs (Appeals), Kolkata [hereinafter referred to as the Commissioner (Appeals) ]. However, by the common first impugned order the Commissioner (Appeals) rejected all the 31 appeals. 3.2 Appeal No. C/76038/2015 Chirag Corporation (in short, Chirag ) imported two consignments of power tillers and filed two Bills of Entry both dated 03.06.2014, claiming benefit under the said notification in respect of the consignments of power tillers imported. 3.2.1 The two Bills of Entry were self assessed and cleared by the Customs Risk Management System. However, when the goods were examined it was found that what was imported, according to the Customs authorities were, not rotary tillers which were eligible to benefit under the said notification and therefore the benefit thereunder could not be made available to the goods imported by Chirag. Consequently, both the said Bills of Entry were reassessed denying the benefit under the said notification. In addition, the goods were held to be liable for confiscation un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accountant for both BTL and M/s. Chirag Corporation and Shri Manish Mohan Shri M.P.Topo, both Ld.Authorized Representative for the Revenue and have perused the appeal records, including the judgment and order dated 23.11.2021 passed by the Hon ble Calcutta High Court. 5. It has been contended by Dr. Samir Chakraborty, Ld.Senior Advocate on behalf of the importers that: (i) Power tiller, also called as a rotary tiller, is an agricultural machine used for soil preparation having a single axle, in which the direction of travel and its control during field operation is performed by the operator. It is self-powered, self-propelled. The equipment may be walk behind or riding attachment type. The minimum rated horse power output of the power tiller engine shall not be less than 8 BHP (Break Horse Power). It is also known as hand or walking type tractor or rotary tiller. (ii) Construction-wise a power tiller or rotary tiller comprises of 4 sub-assemblies, namely prime mover (generally it s a single cylinder, diesel engine), chassis frame, transmission unit and functional part, i.e., the rotary unit. The other parts of the same are wheels, axle and seating arrangements. (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal in the case of VST Tillers Tractors Ltd. Vs. Commissioner of Central Excise, 2006 (196) ELT 419 (T). 5.1 The Ld.Authorized Representative for the Department, while reiterating the findings of the order of this Bench in the case of Commissioner of Customs (Port), Kolkata Vs. Chirag Corporation, 2020 (2) TMI 1432 CESTAT KOLKATA and the findings of the Ld.Commissioner (Appeals) dated 11.09.2014 passed in Appeal No.C/76152/2015, relies also upon the CBEC Circular No. 45/2001 dated 07.08.2001 and contends that the matters should be remanded for deciding the correct classification of the imported goods in both cases. 6. We find that the issue involved in both the appeals is whether or not power tiller is covered under the said Notification No. 12/2012 and, consequently, whether the benefit thereunder is available to the respective importers in respect of the power tillers imported by them under the above referred Bills of Entry. 7. CTH 8432 classifies agricultural, horticultural or forestry machinery for soil preparation or cultivation, lawn or sports ground rollers. CTH 8432 8020 refers to rotary tiller under the sub-heading other machinery (8432 80). There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revised Policy Present Policy Condition Revised Policy Condition 8432 8020 Rotary tiller Free Restricted - Subject to Policy Condition 3 of this Chapter 8432 9090 Other Free Restricted - Subject to Policy Condition 3 of this Chapter 2. A new Policy Condition No. 3 is being added in Chapter 84 of ITC (HS), 2017, Schedule-I (Import Policy) as follows: 3. Import Policy for Power Tillers and its components: a. Under HS code 8432 8020, Import is Free for all items except Power Tillers as defined in IS:13539- 2018. b. Under HS code 8432 9090, Import is Free for all items except for Engine, Transmission, Chassis and Rotavator forming parts of Power Tillers as defined in IS:13539-2018. c. Definition of Power Tillers as per IS:13539-2018: Power Tiller is an agricultural machinery used for soil preparation having a single axle, in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been holding that Power Tiller is classifiable under 84.32 inspite of the HSN. The DGFT also decided that Power Tillers or walking tractor will fall under 84.32. They have observed that the guiding principle in all such classification will be that any machinery, including Tractors used for agricultural activity should be classified under agricultural implements under 84.32 and those used for transport should be under 84.34 . The essential function of Power Tiller is not transport as seen from the literature available. Another point to be noted is Power Tiller Manufacturers Association s representations to the Government of India with regard to the import policy of Pedestrian Controlled Tractor cannot be held against them, as they have not been relied on in the Show Cause Notice. The adjudicating authority has gone strictly by the HSN and classified the item under 87.01. In our view, in a situation like this the totality of facts and circumstances has to be applied. There is also no merit in invoking the longer period, as there is absolutely no suppression of facts. The appellants have been filing the classification list and declaration and the department was very well aware o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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