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TMI Blog2024 (3) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... oduct for Agricultural purpose cannot be the criterion for determination of the appropriate classification. It is held by the Hon ble Supreme Court in the case of M/s O.K. Play (India) Ltd vs CCE [ 2005 (2) TMI 114 - SUPREME COURT] that use of an article as Toys by children would not place in classification under Toys . It has been held in a series of cases that the explanations for classification of particular product mentioned in the HSN cannot be brushed aside in determining the correct classification of a product. Thus, the impugned goods in question i.e. brush cutters is correctly classifiable under CTH 8467 8990 of CTA,1975. Past clearance of the imported goods - We find that the appellant declared the description of the goods correctly all along during the said period. Also, the goods were examined and assessed by the Department. Once the catalogue has been submitted by the appellant during the course of assessment, therefore, it is the responsibility of the Department to ascertain from the catalogue and description its classification under the appropriate heading. Also, it has been held in a series of cases that merely because the goods are not classified correctly under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods as grass trimmer/brush cutter . Investigation was initiated on the classification of said products. After recording the statements, analyzing the catalogues etc., and on completion of said investigation, a show cause notice was issued to the appellants on 14.11.2014 alleging that the products imported namely brush cutters are classifiable under CTH 8467 8990 and not under CTH 8432 2990 as claimed in the respective Bill of Entry. The appellants accepted the said classification and discharged duty with interest amounting to Rs.49,72,134/- for the period from 18.01.2014 to 30.09.2014 under protest classifying the products under CTH 8467 8990. Further investigation revealed that similar goods were imported in the past by the appellants and consequently, demand notice was issued for the period from 18.11.2009 to 28.11.2013 demanding differential duty of Rs.93,37,120/- with interest and penalty with proposal for confiscation. Hence the preset appeals. 3.1 The Ld. Advocate for the Appellant submits that the goods imported were classifiable under CTH 8432 2990. She has submitted that CTH 8432 covers the products meant for the agricultural purposes. It is her contention that the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.2 She has further submitted that the show cause notice invoking extended period of limitation and confirmed by the Commissioner is not sustainable in-as-much-as the appellants have neither indulged in any suppression nor mis-declared the description of the imported goods with an intent to evade payment of duty. She has submitted that the appellants are importing the goods from November 2009 onwards classifying the same under CTH 84322990 of CTA,1975. The appellants have been filing all the required documents such as bills of entry, supplier invoices, packing lists etc. and they have not mis-declared the description of the imported goods in all the documents including bills of entry, which are correctly described as brush cutters and the same have not been disputed by the Department. The imported goods have been duly examined and assessed by the Customs Officers and assessment orders have been passed accordingly. She has further submitted that extended period of limitation cannot be invoked in cases wherein the goods have been assessed and the assessees have provided all the relevant documents and materials during such assessment proceedings. In support, she referred the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 467 8990 of the Customs Tarriff Act, 1975; (ii) demand could be confirmed invoking extended period of limitation for the past period 18.11.2009 to 28.11.2013 and (iii) penalty imposable on the appellants. 7. The appellant in their reply dated 14/5/2015 before the Commissioner submitted that they are not contesting the classification of the product, brush cutter, on merit, but contested the invoking of extended period of limitation. In the finding, the Commissioner recorded that the appellant has accepted the re-classification of the goods under CTH 8467 and the dispute is only for the demand invoking extended period. However, the Commissioner proceeded to discuss the classification on merit and also the demand for extended period. In the grounds of appeal, the appellant agitated the classification and during the course of argument the Advocate for the appellant also raised the issue on merit as well as on limitation. 8. Before analyzing the relevant entries in ascertaining the correct classification of the imported goods viz. brush cutters, it is necessary to reproduce the competing entries of the Customs Tariff Act,1975 which is as under: 8432 AGRICULTURAL, HORTICULTURAL OR FOREST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u 7.5% - 84672900 -- Other u 7.5% - - Other tools : 84678100 -- Chain saws u 7.5% - 846789 -- Other : 84678910 --- Compressed air grease guns, lubricators and similar appliances u 7.5% - 84678920 --- Vibrators u 7.5% - 84678990 --- Other u 7.5% - - Parts : 84679100 -- Of chain saws kg. 7.5% - 84679200 -- Of pneumatic tools kg. 7.5% - 84679900 -- Other kg. 7.5% - 9. The claim of the appellants in the respective bills of entry is that the declared product namely brush cutters is classifiable under CTH 8432 2990 since this product is meant for agricultural purposes and cleared to the farmers. Its use for agricultural purposes has been supported by certificates issued by the University of Agricultral Sciences, Bangalore. 10. In the alternative, the contention of the appellants is that if the said brush cutters is not accepted to be classifiable under CTH 8432, the same could be classifiable under CTH 8433 relating to harvesting or threshing machinery etc. 11. Revenue s argument, on the other hand, is that CTH 8432 and 8433 cover only machinery and not hand tools. The hand tools specifically covered under the scope of CTH 8467. In support, ld. A.R. for the Revenue referred to the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch tools only if for working in hand. The expression tools for working in hand means tools designed to be held in the hand during use, and also heavier tools (such as earth rammers) which are portable, that is, which can be lifted and moved by hand by the user, in particular while work is in progress, and which are also designed to be controlled and directed by hand during the operation. To obviate the fatigue of taking their full weight during operation they may be used with auxiliary supporting devices (e.g. Tripods, Jacklegs, Overhead Lifting Tackle). However, certain tools for working in the hand of this heading have fittings permitting them to temporarily fixed to a support. They remained classified here, together with support if it is presented therewith, provided the tools are essentially for working in hand as defined above. Some of the tools covered by this heading may be fitted with auxiliary devices (e.g. ; a Fan Wheel and its dust bag to remove and collect dust during working) 8.4.2 Further, the Explanatory Notes to CTH 8467 also specify the Tools covered under this heading and Sl.No. 18 19 of the list are reproduced below:- (18) Portable machine for trimming lawns, cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose, cannot, in case of a conflict, override the clear indication of the meaning of an identical expression in the same context in the HSN. In the HSN, block board is included within the meaning of the expression similar laminated wood in the same context of classification of block board. Since the Central Excise Tariff Act, 1985 is enacted on the basis and pattern of the HSN, the same expression used in the Act must, as far as practicable, be construed to have the meaning which is expressly given to it in the HSN when there is no indication in the Indian Tariff of a different intention. Clearly, therefore, the HSN Explanatory Notes are entitled to far greater consideration than the Tribunal has given there. 3 . The Tribunal has also said that the Collector (Appeals) had not relied upon the HSN Explanatory Notes. That was clearly an oversight of the Tribunal because its order says, earlier, thus: The Collector (Appeals) held that the photographic apparatus, as has been imported, for making printing blocks were excluded from Chapter Heading 84.38 vide Explanatory Notes to CCOM at Page 1288. 4 . The civil appeals are, therefore, allowed. The orders under appeal are set aside. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced. 15. We find that the differential duty of Rs.93,37,120/- has been demanded, as per annexure-1 to the show cause notice for the period 18.11.2009 to 28.11.2013 for clearance of 6765 numbers of Engine Brush cutters cleared against 116 Bills of Entry. The contention of the appellant is that they have placed all the necessary materials, including the catalogue of the said machines at the time of assessment. The goods were physically examined by the assessing officer and thereafter allowed to be cleared on payment of applicable duty. Since the goods were meant to be used for agricultural purposes, they classified it according to their understanding under CTH 84322990. We find that the appellant declared the description of the goods correctly all along during the said period. Also, the goods were examined and assessed by the Department. Once the catalogue has been submitted by the appellant during the course of assessment, therefore, it is the responsibility of the Department to ascertain from the catalogue and description its classification under the appropriate heading. This Tribunal has consistently held that once the description of the goods is correctly disclosed, wrong c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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