TMI Blog2019 (4) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... he adjudicating authority. There is no option other than to set aside the impugned order passed, without proper compliance of the directions of the Tribunal, in the case of order dated 13.10.2014 in the last round of litigation - appeal allowed by way of remand. - E/00472/2011-DB, E/00473/2011-DB, E/00474/2011-DB, E/26726/2013-DB, E/21674/2015-DB, E/21772/2015-DB, E/1138/2012-DB E/20275/2016-DB, E/20276/2016-DB, - Final Order No. 20320-20328/2019 - Dated:- 5-4-2019 - S.S GARG, JUDICIAL MEMBER And MR. V. PADMANABHAN, TECHNICAL MEMBER S. THIRUMALAI ADVOCATE, Mr. HARISH BINDUMADHAVAN / Ms. DISHA GURSAHANEY FOR THE APPELLANT MR. K. MURALI, SUPERINTENDENT (AR) FOR THE RESPONDENTMR. ORDER Per: V. PADMANABHAN The appeals are directed against various Orders-in-Original passed by the Commissioner of Central Excise, Bangalore. The nine appeals covered the period of dispute from June 2007 up to December 2014. The details of the orders which are the subject matter of the present appeals are as follows: Appeal No. Period of Dispute Excise Demand (in INR) Impugned Order details ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des and considering all these submissions, we came to the conclusion that it would be appropriate to remand the matter at this stage itself even though in respect of the very same product this Tribunal vide Stay Order No.1180-1182/2012 dated 5.7.2012 had taken a view that the appellant has to deposit the amount that may be payable during the normal period. The learned AR submitted that there is no reason why this order should not be followed. In the normal course, this would have been the approach followed by us and in fact, we would have also not heard the party in great detail. The learned counsel pressed that he has different grounds to address and should be given an opportunity and hence, the matter was heard in great details. We find that there are three major differences why we intend to remand the matter at this stage to the original adjudicating authority. (i) It was submitted that only one purchase order was considered by the Commissioner wherein appellants had supplied only silos without any accessories. It was the submission that in most of the cases the appellants supplied silos with accessories and therefore in such cases where silos with accessories are cleared and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore in such cases wherein silos with accessories are cleared and it works as a system which can perform the function of grading, sorting, cleaning seeds etc., it has to be treated as machinery. It was also submitted that the decision in the case of Thermax Ltd. relied upon by the learned counsel before the original authority is applicable to the facts of this case and distinction made by the Commissioner may not be applicable in respect of all the consignments cleared by the appellants. All the POs submitted by the assessee during the various submissions made by the assessee during the various dates as mentioned against each of the POs referred in Para 16.12 above. As pointed out earlier, in view of the fact that there is a specific heading to classify the goods viz, silos for storing ensilage under 94060093 which has also been suggested by the assessee during the course of their submissions, there is no ambiguity in the classifying of the goods and I hold that the Silos manufactured by the assessee rightly falls under Chapter sub-heading 94060093 of the First Schedule to the CETA, 1985. Further, Thermax Order has been discussed in detail in Para 16.16. above. (ii) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact even the Commissioner has distinguished the decision in the case of Thermax Ltd. holding that in the Thermax Ltd. case the assessee had catalogue which showed that the said silo had multiple devices attached to the storage system and therefore had multiple uses. However, in this case, he has not discussed the catalogue or brochures of the assessee. The Thermax case has already been discussed in detail in Para 16.16 supra. Further the brochures, the assessees call that the products deserves classification under 94060093 specific heading and the additional submissions as exhibits have all been taken into cognizance while arriving at the classification of the Silos manufacture by the assessee and it is felt that the product deserves classification under CETH 94060093 as rightly pointed out by the assessee. 2.2 Subsequent to the issue of impugned order dated 31.3.2015, the Commissioner proceeded to decide the issue for the subsequent periods byissue of various further orders. All these appeals are taken up for decision by this common order. 3. The appellant s case is argued by Mr. S. Tirumali, Mr. Bindhu Madhavan and Ms. Disha Gursahaney, learned advocates and Revenue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resulting in sale of stored items at the peak-value. Function: The Silos are structured to include equipment for specific functions that enable scientific and mechanized storage and handling of grains, like, for instance, Galvanised Silos are equipped with Silo Accessories like Level Switches, Aeration System, Sweep Auger, Temperature Monitoring Device and Discharge Gates. Hence, it cannot be said that Galvanized Silos manufactured by the Appellant are merely storage systems. The above facts are clear from the brochure and the purchase orders of the Appellant, as available from pages 6 to 13 and 56 to 75 of the paperbook to E/21674/2015 against Order-in-Original No. No. 05/ATT/COMMR/ B1/2015 dated 31.03.2015. 4.2 In light of the above facts, the Appellant summarizes its submissions as below:: (a) Burden of proof of classification lies on the Department It is submitted that it is a settled position of law that the onus of establishing that the classification of the product in question is on the Department. In the present case that onus and burden has not been discharged by the Department. The Appellant submits that in the present case there has not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the said judgment will continue to apply to the case of the Appellant as well and the classification under heading 84.37 claimed by the Appellant is tenable in law. The Thermax judgment has not been reversed till date and the same holds the field even today in so far as the classification of Grain Silo systems is concerned. The said judgment squarely applies in situations where the silos are cleared with various forms of machineries. (f) It is possible to order pre cleaners separately and not with the silos that the appellant clears usually. As it is understood that pre cleaners are required by other customers too even if no order for silos have been made. (g) Chapter Heading No. 8437 is a specific one and it ought to have been appreciated that the very description of the heading states that it covers machinery used in the milling industry. It is wrong to misapply the general rules of interpretation. Chapter Heading No. 8437 provides the most specific description of the silos given that it is machinery used in the milling industry. (h) If there is a conflict between two entries one leading to an opinion that it comes within the purview of the tariff entry and another r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. (n) In this regard, reference is made to Order-in-Original No. 19/2013 dated 28.02.2013 in respect of the Appellant on the same issue for the period July 2011 to March 2012, passed by Shri Ashok, which clearly holds in para 12, that, classification under item 94060099 is better than under 94060093, since Others covers any pre-fabricated building used for storage. (o) Department cannot go beyond the SCN allegations in respect of classification Burden of proving classification is on the Department, which has not been satisfied. More so, the stand of the Department in respect of classification has never remained constant, as evident from the table below: Period of Dispute Alleged classification in the SCN Classification as per the order (Appealed before Tribunal) Denovo Order June 2007 November 2008 94060099 94060099 - December 2008 September 2009 94060099 October 2009 July 2010 94060099 August 2010 June 2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y conclusion that the product manufactured by them is rightly classifiable under 94060093 and as the product manufactured by the assesse has a clear, unambiguous and specific heading 9406 0093 for classification, the product merits classification under that heading only and not elsewhere as mentioned by the assessee. Though the said heading is not sought for re-classification by the SCN since the assessee have on their own arrived at the conclusion that the product manufactured by them falls squarely under the heading 9406 0093, I hold that the product merits classifications under that heading alone. It was emphasized that the appellants have never conceded to the conclusion that the product is classifiable under 9406 0093. (t) The learned counsel further submitted that one of the points to be considered in de novo adjudication was due consideration of various purchase orders procured by the appellant. The Tribunal had directed that the adjudicating authority shall examine all the purchase orders but it was highlighted that the adjudicating authority, in spite of examining all the purchase orders, has proceeded on the assumption that the appellant has conceded the classifica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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