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TMI Blog2000 (6) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... t the unloader is a transmission equipment for transmitting raw materials and this fits into heading 9801.00. He observed that project had been registered for setting up a Phosphatic Fertilizer Plant and a ship unloader removing raw materials from a ship and loading it onto a belt and operating from within the port area cannot be called machinery for initial setting up of a unit to manufacture fertilizer. The unloader is not at all involved in the manufacture of fertilizer, nor is it an equipment used in the construction of a fertilizer project. He accordingly finalised the provisional assessment of the imported goods by classifying them under Heading 8428.39 and confirming a duty of Rs. 10,27,13,769/- on the importer. 4.The appeal of the party failed before Collector (Appeals), Calcutta. 5.We have heard Shri Joseph Vellapally, Sr. Advocate for the appellants and Shri Jagdav Singh JDR for the Revenue. The ld. Senior Advocate for the appellants submitted that the entry under Heading 98.01 has to be given widest possible meaning. The contract was registered under the Project Imports Regulations, 1986. It is stated that Material Handling (Transmission Equipment) System is integral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h it is affirmed inter-alia that the Project Imports Regulations, 1986 do not contain any provision for superseding or cancelling any registration of the contract allowed under superseded Regulations of 1965. It is held that the authority empowered to register the contract could not have cancelled the registration already done more so without affording the respondents an opportunity of hearing. 6.Shri Jagdav Singh Ld. JDR appearing for the Revenue submitted that in this case, demand of differential duty has been raised against the appellants under Section 28(1) of the Customs Act, 1962 for which the Assistant Commissioner of Customs is the competent authority. He stated that this is a case of change of classification with the demand of differential duty. He referred to Tariff Heading 98.01 and submitted that in order to merit classification under this heading, the imported machinery, equipment must be the part of an "Industrial Plant" as specified under this heading. He stated that in the present case the impugned equipment is a port handling machinery and not a part of the industrial plant for which the contract is registered. He refuted the claim of the appellants to term the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Tariff Act, 1978". Therefore, a person seeking to classify their goods on imports under this heading, has to follow the procedure prescribed under these regulations. These regulations do not over-ride other provisions of the Customs Act, rules and procedures. In this regards it would be fruitful to reproduce the extracts from para 16 of Larger Bench decision of the CEGAT in National Aluminium Co Ltd. v. Collector of Customs, Madras - 1997 (94) E.L.T. 409 (Tribunal) as follows :- "16. The decision in Jacsons Thevara case, 1992 (61) E.L.T. 343, in our view proceeds on the basis that the Customs Authorities are the authorities vested with statutory authority under the Customs Act, 1962 to render decision on question of classification of imported goods vis-a-vis Tariff Act. Goods imported as project import and cleared on concessional rate of duty under Chapter Heading 84.66 of the Tariff were not used by the importer in the project and were transferred to a different legal person and hence Chapter Heading 84.66 was not attracted and concessional rate of duty and facility of project import was not available." 8.The reliance placed by the appellants on the judgment of Hon'ble Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This judgment was also cited before the Larger Bench of the CEGAT in National Aluminum Co. Ltd. v. Collector or Customs Madras (Supra). The CEGAT on consideration held the view that the judgment of the Supreme Court rested entirely as an interpretation of the provisions of Section 8(3)(b) of the Central Sales Tax Act and Rule 13 of the Rules and applications of these provisions to the integral process. The provisions under heading 84.66 (now 98.01) has quite different language and content namely "Auxiliary equipment required for initial setting up of a unit or...... of a specified Industrial Plant" and that the decision relied on cannot be applied to the language adopted in Chapter Heading 84.66 (present heading 98.01). 11.Now we come to question of classifying the imported equipment as 'transmission equipment' or 'auxiliary equipment' under heading 98.01 of the CTA. This heading is extracted below : Heading No. Sub-heading No. Description of article Rate of duty Standard Pre-ferential Area 98.01 9801.00 All items of machinery including prime movers, instruments, apparatus and appliances, control gear and transmission, equ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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