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TMI Blog2009 (2) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... -2004 and is covered under the EPCG scheme. - C/665/2008 - 137/2009 - Dated:- 25-2-2009 - S/Shri T.K. Jayaraman, Member (T) and M.V. Ravindran, Member (J) S/Shri G. Shiva Dass, Advocate and G. Venkatesh, Consultant, for the Appellant. Smt. Sudha Koka, SDR, for the Respondent. [Order Per : T.K. Jayaraman, Member (T)].- This appeal has been filed against the Order-in-Appeal No. 89/2008-Cus.(B), dated 31-7-2008 passed by the Commissioner of Customs (Appeals), Bangalore. 2. We heard both sides. 3. The appellants are Telecom Service providers. They filed Bill of Entry dated 17-4-2008 for clearance of goods described as "1 set of Gas Suppression System'[(GSS in short). They sought classification of the said goods under hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that the goods viz. GSS HFC 227 EA are definitely Capital Goods in terms of para 9.12 of the Foreign Trade Policy as "any equipment required for rendering services either directly or indirectly". For a service provider like the appellant, safety against fire of the equipments as well as data is of prime importance. This system under import would detect the smoke well in advance and douse it without causing any damage to the server and other equipments and data therein. Hence, it qualifies for classification as qualified as Capital Goods. Moreover, the DGFT has accepted the goods as Capital Goods and issued licence accordingly. In such circumstances, the Customs have no jurisdiction to sit in appeal over the said decision of the DGFT. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 97/2004-Cus. It was stated that even before the amendment, the licence holder was entitled to Import spares and consumables required for an existing Plant and Machinery. The Entry in the aforesaid Notification before the amendment stated that "Spare parts Including consumables for the existing plant and machinery of the licence holder" at Sl. No. 5 of the Table. In the amending Notification, the expression "including consumables" has been deleted. This means that consumables, which an imported for existing plant and machinery, are excluded by this amendment and not the consumable imported along with Capital Goods in the first instance. Therefore, the said, amendment will not advance the case of the Revenue. It can also not exclude consuma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finition. Further, goods required for rendering the services by the service provider is also treated as Capital Goods. If, on the other hand, HFC 227 EA alone is treated as falling under heading 29.03, even then, according td the appellant, the same is covered by the expression "plant" appearing in para 9.12 of the Policy. The term 'plant' is defined and explained by Gujarat High Court in the case of Elecon Engineering Co. Ltd. - 1974 (96) ITR 672. Applying the above test, the Hon'ble High Court has held that "engineering drawings art plant". Similar view was taken in the following cases peg. (a) Scientific Engg. House Pvt. Ltd. v. CIT - 1986 (157) ITR 86 (Guj.) (b) Aruna Mills v. CIT - 1966 (59) ITR 507 (Guj.) (c) CIT v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under CTH 8531. 10. 90 is the most appropriate one. It was also submitted that the GSS consists of HFC 227 EA equipment such as cylinders, pressure gauge, solenoid valve actuator, manual actuator, pneumatic actuator, flexible hoses, check valve, pressure contact, gas nozzle for centralized installation, gas nozzle for raised floor, diagram of centralized installation with connections for pilot circuits. Each of the above items is specially designed to form part of the GSS. 5. The learned SDR took us to the impugned Order-in-Appeal and stated that the Commissioner (Appeals) has clearly held that the goods would not be entitled for the benefit under the EPCG scheme. 6. We have gone through the records of the case carefully. It is seen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dernization, technological upgradation or expansion it also includes packaging machinery and equipment, refractories for initial lining, refrigeration equipment, power generating sets, machine tools, catalysts for initial charge, equipment and instruments for testing, research and development, quality end pollution control. Capital goods may be for use in manufacturing, mining, agriculture, aquaculture, animal husbandry, floriculture, horticulture, pisciculture, poultry, sericulture and viticulture as well as for use in services sector." 6.1 On going through the said definition, we can even hold that gas, which is used in the present system, for extinguishing the fire can definitely to be treated as Capital Goods. In any case the Gas Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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