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TMI Blog2005 (7) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... in Chapter sub-heading No. 8704.90 enhancing the value of Platform Ringer Crane and SPMTS and denying the benefit of exemption under Notification No. 11/97 as amended by Notification No. 55/97. Respondent(c) preferred an appeal before Commissioner (Appeals), Central Excise Customs, Ahmedabad. (d) Commissioner (Appeals) ordered that "the value declared in the invoice is true and fair under Section 14 of Customs Act, 1962. The differential duty worked out in the present case based on the final assessment on the Bill of Entry is not sustainable. 'The final assessment made on the Bill of Entry stands modified and the appeal is allowed." Hence this appeal. 1.3Brief background, as urged by Revenue in this case is - (i) "The value declared by the importer in the bill of entry was ingenuine and inadequate inasmuch as three invoices No. 001, 002 and 003 all dated 3-1-1997 accompanied the imported goods indicated that the value shown therein was for 'Customs Purpose Only'. In other words the three invoices raised for the said goods were not meant for Commercial Transaction as the goods were imported on returnable/re-export basis. In the circumstances, in order to ascertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of exemption Notification No. 11/97-Cus., dated 1-3-97 as amended by Notification No. 55/97-Cus., dated 13-6-97 as the same was not appearing in the list annexed to the said Notification. Accordingly Customs Duty as applicable to sub-heading No. 8704.90 of the Customs Tariff read with Notification if any, would be leviable on the said SPMTS (Trailers) with power packs. (iv) The Machinery expert submitted his further report on 24-5-1999 after examining the valuation aspect of the goods i.e. "Heavy-Duty Platform Ringer Crane", in detail. It was then observed that the value declared for the subject Crane imported at Sikka with 8 Nos. SPMTS (Trailers was US Dollar 3484500 CIF equivalent to Rs. 53,58,95,500/- whereas the value noticed for similar 8 Nos. SPMTS of 1994 make without Crane, imported at Jawahar Custom House vide Bill of Entry No. 490 dated 4-2-1997 was DFL 60,00,000 equivalent to Rs. 11,86,20,200/- in the year of manufacture. Therefore, the value declared for the subject goods i.e. "Heavy Duty Platform Ringer Crane" which was inclusive of the value of 8 Nos. SPMTS appears not adequate having regards to its configuration and specification which obviously give rise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is not correct to say that the lower authority (the authority who is empowered to finally determine the amount of duty specified in the notice issued under Section 28 of the Customs Act, 1962) would have said the same thing which has been enumerated in the show cause notice issued by the lower authority as the issuing authority is a Superintendent of Customs House, Sikka is different than the adjudicating authority which is the Deputy Commissioner of Customs, having his office at Jamnagar. The party in their Memorandum of appeal have admittedly stated that they have received a show cause notice from the lower authority (and not an order confirming the demand) and still preferred to plead their case before the appellate authority on merit. The apprehension of the parties that the authority competent to determine the amount specified in the notice would have said the same thing which has been enumerated in the show cause notice by the lower authority, is unfounded for the reason that the scheme of thing is such that the authority specified in sub-section (2) of Section 28 of the Customs Act, 1962 is the final authority to determine the ultimate scope of the notice issued by the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (eight) numbers SPMTs (Self Propelled Modular Transporters) merely play the role in moving the platform ringer crane from one place to other by simply placing the trailers under the ring base by raising the parking pads, without affecting the operational efficiency of the crane, in any way. 3. In para 3 Page 7 of the OIA Hon'ble Commissioner (Appeals) has placed reliance on the Hon'ble Bombay High Court's ruling in the case of M/s. Randeep Shipping and Transport Co. Pvt. Ltd., 1984 (41) E.L.T. 392 (Bom.) wherein the Hon'ble Court has taken judicial notice of the definition of a mobile crane in the Encyclopaedia Britannica which is as follows : "Mobile Cranes are wheeled devices with their own motive power. Which enables them to move over wide areas, they are generally of the jib type with a single boom attached to the mobile body". Hon'ble High Court in that case held that in the above mentioned case since the crane had moved over wide areas and it had wheels which enable it to move from place to place and the crane had its own motive power as the crane was pneumatically propelled. The crane was a mobile crane. But in the present case, the platform ringer crane imported b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e crane and groove MZ 90 sky worker mobile crane is incorrect inasmuch as all the technical literature as per annexure A. The contract between the M/s. RPL and suppliers M/s. Europa RV describes it as platform twin ringer heavy duty crane. Nowhere, except the bill of entry and the invoice the word mobile crane is mentioned. Even the plate marking on the platform ringer crane describes it as follows : I. TWIN RING P.F. H.O YEAR OF CONSTRUCTION 1997 TYPE : PLAFTFORM RING NO. A 6000 II. HOUTSMAN/TSRER 5. Further, in para 7 of the findings in OIA the Commissioner (Appeals) has found that this crane is mounted on 8 SPMTs which is incorrect inasmuch as the crane is not mounted on 8 SPMTs but it works mounted on 36 hydraulic jacks stationed on specially prepared base for taking the load. Thus the 8 SPMTs are used only for relocation the crane from one work area to another work area. These 8 SPMTs cannot take the load of the crane i.e. while working the crane cannot be mounted on 8 SPMTs. In the contract they have mentioned everywhere crane and SPMT differently and the mobile grove MZ crane have also been mentioned s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ane. As per this judgment the present ringer crane when assemebled, erected and installed at the working site the SPMTs are to be removed from below the ring of the crane to make it functional. Thus, the SPMTs are not part of the crane. There is no doubt that the crane is to be classified under 8426.19 when fully assembled, erected and installed at the site. And the SPMTs are to be classified separately under Chapter sub-heading No. 8704.90 of the Customs Tariff Act as they are not a part of the crane when it is fully assembled, erected and installed at the working site. This is also clear when referring the contract made by M/s. RPL while entering into the agreement with the foreign supplier for supply of heavy lift, the party have mentioned Crane and SPMTs separately. In the contract they have correctly mentioned the rate of Customs Duty applicable to Crane and SPMTs respectively. 9. Now, as per para 10 of the OIA, the Commissioner (Appeals) has given the benefit of the exemption notification No. 11/97 as amended classifying the above crane as mobile crane. Further as already discussed above, if this crane is to be considered as a mobile crane then all cranes can be cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the work to be performed by the crane, M/s. RPL contracted to pay 5989000 US $ (Five million nine hundred eighty-nine thousand US Dollars) to the contractor including the work to be performed by one other mobile crane grove MZ 90 and one Fork Lift Maniton HT 3500. The value of the whole cranes along with the SPMTs declared by the party is only 3484500 US $ (Three million four eighty-four thousand five hundred US Dollars) (sic). The total value for the other two items Mobile Crane Graove MZ 90 and Forklift Maniton HT 3500 is 111725 US $. If we add the declared value of all the three items together it comes to 3596225 US $ (i.e. Three million five hundred ninety-six thousand two hundred twenty-five US Dollars only) which is much less than contract price for the work to be done by the crane and SPMTs and other two items. If the declared value represents the fair market price of the crane and SPMTs then it would make much more economical sense to purchase the above machinery to get the above work done. 13. Further regarding the 8 SPMTs, since they are of the same make of as imported at Jawahar Customs House, Nhave Sheva, Mumbai but of different year the valuation arrived b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld therefore be a futile exercise. Therefore he accepted the plea to decide the issue on merits, in the appeal against final assessment on a bill of entry. Revenue is aggrieved. We do not find any reason to uphold the Revenue's grievance in this regard. The Larger Bench of this Tribunal, in the case of CC v. Arvind Export - 2001 (130) E.L.T. 54 (LB) other cases this Tribunal has held, that an appeal can be filed against an order of assessment on the BE. Revenue otherwise always insists upon, and the Supreme Court vide the decision in the case in the case of Priya Blue Industries Ltd. v. CC (Preventive), 2004 (172) E.L.T. 145 (S.C.) = 2004 (64) RLT 321 (SC) has upheld, that if the assessment orders as effected on Bills of Entry were not challenged, refunds cannot be granted. Challenge of assessment order on BE assessed can be made by an appeal to Commissioner (Appeals). Therefore, there can be no grievance against the Commissioner (Appeals), in having accepted an appeal of the Respondents against final assessment of BE and redetermined the assessment by modifying the one, as arrived at by the final order of assessment by the proper officer on the subject Bill of Entry. Grounds in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter 84. (b) Reading of the Notes as regards machines mounted on tractors or motor vehicles proper to Chapter 87, indicates that certain working parts of the machines of the crane are mounted on tractors constructed essentially for hauling or pushing another vehicle, appliance or load, and like agricultural tractors are fitted with simple devices for operating the working tools and such working tools are subsidiary equipment for occasional work. Such mounted cranes primarily for hauling pressing or changing the site of operation would be classified under Heading 84.26 or under Heading 84.31 even if presented with the tractor (whether or not mounted thereon); such tractors, with its operating equipment are to be classified separately under Heading 87.01. The notes on machines mounted on Tractor type bars under 84.26 read - "On the other hand, this heading covers self propelled machines in which the propelling base, the operating controls, the working tools and their actuating equipment are specially designed for fitting together to form an integral mechanical unit. This applies, for example, to a propelling base resembling a tractor, but specially designed, constructed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le on the moving platform or on its jack, is not relevant to rule out its common understanding to be as a 'Mobile Crane'. A 'Mobile Crane' would be one which can perform its function at different locations; a crane that can move with the load to different sites would be a "Travelling Crane" like an EOT crane, while a crane on propelling platform haulage tractors or guided on rails, capable of operations at different sites would be a Mobile Crane. (d) We find the distinction being made by Revenue of the Tribunals decision in the case of this Tribunal reported in 1997 (96) E.L.T. 482 to be not called for, CCE (A) reliance on the dame is to be upheld. (e) The ground urged of the word "mobile" not mentioned in the contract or the markings and the finding of the CC(A) about the crane being mounted on 8 SPMTs being therefore incorrect inasmuch as the crane works on 36 hydraulic jacks stationed on specially prepared base for taking the load SPMTs being used only for relocation from one side to another, does not enthuse us to classify the SPMTs separately when they are presented as imported together. Surely all elements/components as envisaged under Note 3 to Section XV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, the entity will be and has been used in handling the huge bulky material in its erection and the setting up of the Refinery, the distinction being drawn between Erection Equipment and Material Handling Equipment in absence of any definition by work of an Art in the notification, is not called for. We therefore find no reason to arrive at denial of the benefit of the notification as upheld by CC (A). 2.4 Proceeding to the grounds taken on valuation it found - (a) Since the experts opinion and reasons on valuation are brought out in para (v) we do not repeat them nor deal with individual grounds. However, it has to be held - (i) Comparison from the Technical literature and then comparing the present import with the values of a Crawler Crane CC-12600 an accepted Mobile Crane imported at Jawahar Custom House to be identical and similar to goods herein only on the grounds of Lifting Capacity of the Crawler Crane CC-12600 and the present imported crane to be same and thereafter taking the purchase price of Crawler Crane CC-12600 as available in the literature to be DM25 Million in 1997 and then applying the valuation to the crane in the present case cannot be up ..... X X X X Extracts X X X X X X X X Extracts X X X X
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