TMI Blog2023 (6) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... d justified - appeal dismissed. - Customs Appeal No.11974 to 11979 of 2014 and Customs Appeal No. 13184 of 2014 - A/11181-11187 /2023 - Dated:- 5-6-2023 - MR. RAJU, MEMBER (TECHNICAL) AND MR. SOMESH ARORA, MEMBER (JUDICIAL) Sh. K. J Kinariwala, Advocate for the Appellant Sh Sanjay Kumar, Superintendent (Authorized representative) for the Respondent ORDER These appeals have been filed by Revenue seeking to change classification ordered by Commissioner (Appeals) in respect of following items: Sr. No. Name of Product Appellant Contention for classification Department s contention for classification 1 Shower head of steel CTH- 84248990 CTH-73242900 2 Shower head/Hand shower of plastic CTH-84248900 CTH-39249010 3 Shower panel CTH-84818010 CTH-94060099 4 Shower head of Chrome plated brass CTH-84248900 CTH-74182010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, of stainless steel -Baths: 7324 21:00- Of cast iron, whether or not enamelled 7324 29 00--Other (ii) 3924 TABLEWARE, KITCHENWARE, OTHER HOUSEHOLD ARTICLES AND HYGIENIC OR TOILET ARTICLES OF PLASTICS 3924 10 - Tableware and kitchenware: 3924 10 10-Insulated ware 3924 90- Other: 3924 90 10 - Toilet articles (ii)7418 TABLE, KITCHEN, OR OTHER HOUSEHOLD AND PARTS THEREOF, OF COPPER: POT SCOURERS AND SCOURING OR POLISHING PADS, GLOVES AND THE LIKE, OF COPPER: SANITARY WARE AND PARTS THEREOF OF COPPER 7418 20 - Sanitary ware and parts thereof: 7418 20 10-Sanitary ware 7418 20 20-Parts of sanitary ware 7.3 The appellant has vehemently argued that the goods in question here cannot be called sanitary ware at all. The appellant further contended that for what reason the shower heads are considered as other sanitary ware and how the shower heads and hand showers of ABS Plastics are considered as Toilet Articles of Plastics is not made clear while assessing the goods under CTH 7324 and CTH 3924. It is settled position of law that classification of the goods and burden of proof of classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, preceded by the expression such as cannot bel taken to be an exhaustive list. it cannot be concluded that the goods in question here (shower head/hand shower) would be classified here. Thus, the stand of the adjudicating authority to classify shower head/hand shower under 7324, 3924 and 7424 is not appropriate. 7.4 Now I turn to the appellant's claim and reasons adduced to justify her daim. They have sought to treat the goods as mechanical appliance which regulates flow of water and further it dispenses or sprays liquid water. They have claimed classification under CTH 84249000 under the sub-head 'Other' specified as single dash (-). Hance, have reproduced the relevant Tariff entry of sub-heading 84.24 which is as under :- Mechanical appliances (whether or not hand operated) for projecting, dispersing or spraying liquids or powders: fire extinguishers, whether or not charged; spray guns and similar appliances; steam or sand blasting machines and similar jet projecting machines. . . 8424 89 ---Other: 8424 89 10---- Painting equipment, including electrostatic phosphating and powder coating equipment 8424 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;showers used for shower bath appears one of the 17 items against which classification is mentioned. I am unable to fathom the back ground and legal basis applied for this decision. On the meanwhile. I find that in a subsequent decision. the same goods have been classified differently, I am, therefore, guided by another decision in the case of SWIL Ltd. Vs. Commissioner of C. Ex, Calcutta-IV reported in 2001 (128) ELT 498 (Tri. Cal) and SWIL Ltd. Vs. Commissioner of C. Ex, Calcutta-IV reported in 2001 (133) ELT 719 (Tri. Cal), where, the Hon'ble Tribunal has held that the correct the classification of 'shower is under CTH 8424. In the former case, dispute involved I was correct classification of float wash, water shower and water filter. Water shower was classified by the appellant under heading 8424.10 and the other two products were claimed to be falling under heading 84.21. The Department on the other hand had held that as these products are used by them in the factory manufacturing paper, the same would be classifiable as parts of paper making machinery under heading 8439.90. The Hon'ble Tribunal held that correct the classification of 'shower' is under CT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CTH 84818010 as Taps, Cocks and similar appliances of Iron and Steel. have considered the submissions of the appellant and the decision of the adjudicating authority. The rival Headings reads as under: 8481.00 Taps, Cocks, Valves and similar appliance of Iron and Steel (Appellant's claim) 9406.00 Pre-fabricated buildings (Assessing/adjudicating officer's stand) 8.2 I find that the tarifl heading of pre-fabricated building has to be read with Chapter Note 4 of Chapter 94 which is as follows:- 4. For the purposes of Heading No. 94.06, the expression prefabricated buildings' means buildings which are finished in the factory or put up as elements, cleared together, to be assembled on site, such as housing or work site accommodation, offices, schools, shops, sheds, garages or similar buildings . 8.3 To decide the maller, I take resort to the HSN Explanatory Note under Chapter Heading 94.06. considering that in the case of Commissioner CCE, Goa v/s Phil Corporation Ltd. 2008 (223) ELT. 9 (S.C), the Hon'ble Apex Court has observed and held that HSN is a sale guide for deciding issue of classification. The explanatory not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of the last portion of the note above, to reiterate, presented separately, parts of buildings and equipment whether or not identifiable as intended for these buildings, are excluded from the heading and are in all cases classified in their own appropriate headings. I observe that every structure is not necessarily a building. In any case, in my view, the goods in question here (shower panel) cannot find place under Heading 94.06 which applies to Pre-fabricated buildings. I have perused Explanatory Notes of HSN below Heading 84.81, which includes taps, cocks, valves and similar appliances, used on or in pipes, tanks, vats or the like to regulate the flow (for supply, discharge etc.) of fluids (liquid, viscous or gaseous), or, in certain cases, of solids (e.g. sand). The heading includes such devices designed to regulate the pressure or the flow velocity of a liquid or a gas . In view of this, I hold that the shower panel is not pre-fabricated buildings but on appliance having mix of shower, mixers, jets, taps, cocks, if the material used is iron and steel, which fact has not been controverted by the respondent-department while replying to the appeal memo. I hold that the sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifficult to decide, hence rule 3(a) is not applicable. Even the essential character rule would not apply here as both shower and taps/jets provide essential character. In other words, as mentioned earlier, shower panel is classifiable both CTSH 84248900 as well as 84818010. Hence, I hold that we have to apply rule 3(c). In view of this Rule, which provided that 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. I find that in the instant case. the classification of the impugned goods falling under sub heading 84818010, as claimed by the appellant would prevail. In this regard, I have also noticed that the Certificate of Origin No. C13470ZC39831917 submitted in the appeal memoranda mentioned classification of shower panel as 8481. Hence, find no force in the decision of the adjudicating authority that the shower panel is pre- fabricated building and thus hold that shower panel shall be classified under CTSH 84818010 as taps, cocks, valve, and similar appliance if made up of ferrous metal and under CTSH 84818010 as taps, cocks, valve, and similar app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation, as directed above. We find that revenue has come up with following grounds of appeal: The adjudicating Authority has classified the items under chapter 39 (plastic). 73 (Steel) and 74 (Brass) based on the material of the imported goods. The appellate authority has classified the goods under chapter 84 which is primarily pertains to machines. The appellate authority has erred by classifying the goods in question under chapter 84 because these goods are not of the nature of machines/ industrial use. 1. The relied upon cases do not seem to be applicable for the impugned goods for following reasons: i. For example in case of SWIL Ltd., the items covered pertains to paper making machinery. While the impugned goods in the current B/E are not used in paper making industry. Hence not applicable. ii. In case of Commissioner, Mumbai vs. B. Nichlani, items are used for spraying paint of distemper, varnishes, oils, plastics, cements, metallic powder, textile dust etc. These items are different from the goods in question in current consignment. Hence not applicable. iii In fact in the cited case of M/s. Prayag Polymers, goods are classified under Ch. 39 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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