TMI Blog1998 (1) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... classification done from time to time by the department under Chapter Heading 8468.00 which reads : Machinery and apparatus for soldering, brazing or welding whether or not capable of cutting other than those of Headings No. 85.15; gas-operated surface tempering machines and appliances. 2. In the impugned order, the Addl. Collector has not only revised the classification from time to time but has upheld the allegation on suppression of facts in the classification list and in this context he has imposed a penalty of Rs. 25,000/- besides ordering for confiscation of plant and machinery under Rule 173Q(2) and granting option of redemption on payment of Rs. 25,000/-. He has also confirmed the duty under Rule 9(2) read with Section 11A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce proviso to Section 11A is invokable. 3. By a detailed reply to the show cause notice, the appellants seriously contested the said allegation and Additional Collector s attempt to re-classify the approved classification adopted by the department from time to time for the last several years. They pleaded that the Additional Collector should have kept his mind open till he came to a decision and raising the question of reclassification on the basis of his personal observation and visit to the factory and that has reopened the case himself by issue of show cause notice is totally unsustainable. They also pleaded that there is no pump either attached or inbuilt in the apparatus as alleged in the show cause notice. The apparatus consists of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g tools for removing cores from castings, mould vibrators. 11. Earth compacting rammers for road building etc. 12. Automatic spedes. 13. Concrete vibrators to facilitate the flow and setting of concrete. 14. Hydraulically driven boiler type de-scalers. 15. Compressed type greasing pistols for garages etc. 16. Portable machine for trimming lawns, cutting grass along walls, borders or under bushes for example. Such machines have a self contained internal combustion engine in a light metal frame and a cutting device usually consisting of one or more thin nylon threads. They have pointed out that under Chapter Heading 84.67 or the Customs Tariff Act, 1975 three sub-classifications are adopted viz : (i) Pneumatic (ii) other tools a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the item was correctly classified under Heading 84.68 along with apparatus for soldering as the item in question was used along with soldering the electronic PCB. Large number of judgments were cited by the appellants in their reply to show cause notice to support each of the contentions raised by them. 4. We have heard ld. Advocate Shri L.B. Attar and Shri S. Nunthuk, ld. JDR. 5. On a careful consideration of the submissions made by both the sides, we are of the considered opinion that the Additional Collector has proceeded on his own personal observation and visit to the factory and he has also enclosed his observations to raise the demand by alleging mis-classification. The Addl. Collector has not obtained any opinion from any of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd building under Section 173Q(2) on the allegation that mis-classification has been done deliberately to evade duty. We can not appre- ciate the reasoning given by the Addl. Collector to confiscate plant and machinery and also to impose penalty. The department had classified the product time and again along with soldering apparatus under Heading 84.68. We notice that the appellants have produced technical opinion from two experts and the said opinion has not been controverted by getting any opinion from other experts to contradict the opinion given by the Prof. of Mechanical Engineering Deptt., College of Engineering. The manner in which the evidence has been dealt with by the Addl. Collector cannot be appreciated as the Addl. Collector ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading this note, it is very clear that the item in question does not have all these features of having a compressed air motor etc. The note further states that the heading covers such tools only if it is for working in the hand. It further states that the expression tools for working in the hand means tools designed to be held in the hand during use, and also heavier tools (such as earth rammers) which are portable, that is which can be lifted and moved by hand by the user, in particular while work is in progress, and which are also designed to be controlled and directed by hand during operation. It further states that to obviate the fatigue of taking their full weight during operation they may be used with auxiliary supporting devices ..... X X X X Extracts X X X X X X X X Extracts X X X X
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