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TMI Blog2024 (7) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... lted with. Accordingly the duty paid by the appellant claiming exemption under N/N. 12/2016-CE dated 01.03.2016 needs to be upheld. There are no merits in the impugned order to this extent - appeal allowed. - HON BLE MR. P. K. CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri Rajesh Chhibber , Advocate for the Appellant Shri Manish Raj , Authorized Representative for the Respondent ORDER SANJIV SRIVASTAVA : This appeal is directed against order in appeal No GZB/EXCUS/000/APPL-MRT/456/2018-19 dated 16.01.2019 of the Commissioner Central Excise and Service Tax (Appeal) Meerut. By the impugned order following has been held: 6. I have carefully gone through the facts and records of the case as well as the submissions made by the appellant. I find that the appellant himself has submitted that he was initially clearing his finished goods i.e. PVC flooring/ covering under CETSH No. 39181090, but on insistence of Railways, the said goods were classified under CETSH No. 86079910, and benefit of Notification No. 12/2016-CE dated 01.03 2016 was availed and consequently C. Ex. duty @ 6% adv was paid In this regard, I further find that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / CGST-VII/Ghaziabad/2017-18 dated 31.01.2018 is partially allowed. 2.1 Appellant is registered with the Central Excise department vide Registration No. AAACPO371QXM001, and is engaged in the manufacture of PVC Laminated Sheets, Vinyl Coated Upholstery Fabrics Plastics, Articles of plastics and PVC Flooring Covering classifiable under Tariff Head No. 39204900, 59031090, 39239010 and 39181090 respectively of the Central Excise Tariff Act,1985. 2.2 During the scrutiny of party's monthly ER-1 return for the month of March' 2017 (RUD-1), it was noticed that party cleared their finished goods i.e. PVC Flooring Covering falling under Tariff Head No. 39181090 to the SMM/CRW/MCS (Ward-03) East Coast Railway, Mancheswar, Bhuwneswar, Odisa, mentioning these goods as Parts of Coach Work of Railway Running Stock classifying them under Tariff Head No. 86079910 and availed benefit of Notification No. 12/2016.C.E dated 01-03-2016 (SI No. 272 A), which was not admissible to them. Central Excise duty @ 6% Adv was paid instead of 12.50 % Adv payable on PVC Flooring Covering falling under Tariff Head No. 39181090. They debited Rs. 6,60,561/- under protest, against goods supplied to Railway un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944; All the adjudged dues should be paid forthwith 2.6 Aggrieved appellant filed the appeal before the Commissioner (Appeal) which has been disposed of as per the impugned order. 2.7 Aggrieved appellant have filed this appeal. 3.1 We have heard Shri Rajesh Chibber, Advocate for the appellant and Shri Manish Raj, Authorized Representative for the revenue. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Undisputedly the goods in the present case were cleared by the appellant to railways for use in the railway coaches and were meant for the rolling stock of the railway. The classification of the goods was done by the appellant at the instance of Railway under chapter 86079910 by the appellant and the benefit of exemption under the Notification No 12/2016-CE dated 01-03-2016 claimed. Issue whether the goods will be classified under the specific tariff entry of the goods cleared or under chapter 86 has been settled by the Hon ble Supreme Court in the case of Westinghouse Saxby Farmer Ltd [2021 (376) E.L.T. 14 (S.C.)] obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule 2(b) or for any 3. other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows : (a) the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (b) mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to (a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. (c) when goods cannot be classified by reference to (a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration. 29. Interestingly Rule 2(a) speak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pment and that, therefore, Relays manufactured by them would fall under Chapter Heading 8608 due to the usage of the word parts . It is this contention that is sought to be repelled by the Authorities by relying upon Note 2(f) of Section XVII. 34. Though at first blush, Note 2(f) seems to apply to the case on hand, it may not, upon a deeper scrutiny. 35. Note 3 of Section XVII reads as follows : References in Chapters 86 to 88 to parts or accessories do not apply to parts or accessories which are not suitable for use solely or principally with the articles of those Chapters. A part or accessory which answers to a description in two or more of the headings of those Chapters is to be classified under that heading which corresponds to the principal use of that part or accessory. 36. What is recognized in Note 3 can be called the suitability for use test or the user test . While the exclusion under Note 2(f) may be of goods which are capable of being marketed independently as electrical machinery or equipment, for use otherwise than in or as Railway signalling equipment, those parts which are suitable for use solely or principally with an article in Chapter 86 cannot be taken to a diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubes and the like, had been referred to in this Tariff Heading as the ones prepared for use in structures. Similarly, the entry in the sub-heading 7610.10 of this Tariff Heading, regarding doors, windows and their frames and thresholds for doors refers to the ones which are meant for use in the structures as this entry is contained in the sub-heading of the main tariff heading 76.10 of the CETA. The entries in the Tariff heading and sub-heading have not to be read distinctively but collectively and in such a manner that the entry in the main Tariff Heading 76.10 does not become superfluous, redundant or in any manner isolated from its sub-heading entry. Therefore, only those doors, windows and their frames and threshold for doors, would be covered by sub-heading 7610.10 of the CETA which have relevance and use in the structures and not others. 10. In the instant case, admittedly, aluminium doors and windows manufactured by the assessees have no use or relevance in the structures. These are being manufactured by them on the drawings and specifications provided to them, by the railways, for their sole use in the railway coaches. These aluminium windows and doors, as not disputed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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