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TMI Blog2000 (2) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... al coke is obtained after coking coal is charged into the coke oven plant known as Coke Oven Battery which are situated in the appellants plant. The appellants constructed a new Coke Oven Battery and for setting up for the new coke oven battery two stamp charging and pushing machines and one gas charging cleaning car was required. He submits that the functions of the stamp charging and pushing machine is to take coal from the bunker and to prepare a coal cake stamped to the precise size for being charged in the oven. The packing is essential to obtain the desired productivity. The stamp charging and pushing machines apart from charging the cakes into the oven also pushes out the cake from the oven. 4. In respect of charging gas cleaning car he submits that this is fitted on the top of the oven and its function is to prevent the hazard of emanating smoke and fumes which come out of the doors of the hot oven when the door of the oven is opened for charging the same. 5. He submits that most of the components and parts of the new coke oven battery were procured or manufactured indigenously and some of the parts were imported. 6. He submits that the lower authorities w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harging gas cleaning car. Whereas, the contention of the Revenue is that appellants have imported complete machine. 10. We have perused a copy of the invoice produced by the appellant where the goods in question were describe "Two numbers stamp charging and pushing machines and one number charging gas cleaning car complete with accessories". In the Bill of Entry the same description was given by the appellant. The Insurance Certificate of New Indian Insurance Company Ltd. also describes the goods in the same way. As the appellant describes the goods in Bill of Entry and in the relevant and the accompanying documents as the stamp charging and pushing machines and one charging gas cleaning car complete with accessories, we do not find any merit in the contention of the appellant that the goods were part of these machines and not the complete machine. As the appellant made import of the complete machines, they are not entitled for the benefit of Notification No. 155/86-Cus. dated 1-3-1986 as it provides concessional rate of duty to the parts falling under Chapters 84-85 of the Customs Tariff required for purpose of initial setting or for assembling or manufacture of any article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill have 54 ovens and in each oven, in a rotation of cycle lasting for about 20 hours, a stamped coke of coal will be charged. On completion of the heating cycle at the end of about 20 hours, the red hot coke will be pushed out by the same stamp charging and pushing machine on to the quenching car which in turn will cool the red hot coke at the quenching tower. Thereafter it will discharge coke on coke wharf for onward transmission to blast furnace. It was further pointed out that one SCP machine weighs a total of about 700 tonnes and moves on rails in front of the oven battery. The various functions which the machine can do are briefly as follows :- "Travelling in front of the Battery and precisely positioning. Taking coal from stationary Coal Bunker. Opening and closing oven doors. Clearing oven door and door frame. Preparing a coal cake stamped to the precise dimension. Charging the coal cake into the oven. Pushing coke out of the oven." 17. It was further pointed out that in the stamping of coal cake, various equipments for the process of making coal cake are required. Sketches of the various equipments were also given, namely - (1) Machine Hoppe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted fall under TH 84.17 in the category of industrial furnaces, SCP. In the Explanatory Notes to HSN Heading 84.17 (which corresponds to the CTA Heading 84.17) itself it is clearly stated that "many industrial furnaces incorporate equipment for charging or discharging, for manipulating the doors, covers, hearths or other moving parts, or for tilting the furnace, etc. Such lifting or handling equipment is to be classified with the furnace or oven provided it forms an integral part thereof; otherwise it is to be classified in Heading 84.28". Learned advocate relying on these Notes clearly points out that the goods imported would fall under TH 84.28 which is also a specified item under Notification No. 155/86-Cus. 22. On the other hand, the authorities below have merely gone by the nomenclature given in the invoice or the Bill of Lading without examining the details of the goods imported, as given in the packing list along with invoice. 23. In my considered view the authorities below have erred in denying the benefit of Notification No. 155/86-Cus. to the goods imported by the appellants, as mentioned above. Either for the purpose of classification or for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the coke oven battery in the appellants premises. These would, therefore, become parts for the setting up, or for assembly or manufacture of coke oven battery. 25. Viewed from any angle, I am of the view that the benefit of notification requires to be extended to the goods in question. Hence, I set aside the impugned order and allow the appeal with consequential relief to the appellants. Sd/- (P.C. Jain) Vice President 26. In view of the difference of opinion between Hon'ble Member (Judicial) and Hon'ble Vice-President, the matter is submitted to Hon'ble President for reference to a 3rd Member on the following points :- 27. "Whether the goods in question are parts of Stamp charging and Pushing machines and Gas cleaning car or of Coke oven battery and are entitled for the benefit of Notification No. 155/86-Cus., dated 1-3-1986 as held by the Hon'ble Vice-President or the items in question are complete machines, and are not entitled for the benefit of Notification No. 155/86-Cus. dated 1-3-1986 as held by the Hon'ble Member (Judicial)." Sd/- (S.S. Kang) Member (J) 28. [Order per : G.A. Brahma Deva, Member, (J)]. - In view of the difference of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union Carbide India Ltd. v. CC, Bombay - 1986 (24) E.L.T. 325 32. He contended that since beginning the plea was taken by the appellants that imported items are not complete machines by themselves but they are only parts and even requested for examination of the goods by an independent expert at the time of clearance but the request was not acceded too by the department. He urged that the imported items were to be assembled in the machine which would be complementary to the coke oven battery No. 7 set up initially at Jamshedpur Steel Plant. He said that stamping machine consists of (1) Machine Hopper (2) Plate feeders (3) Stamping System and (4) Stamping box. Elaborating his arguments on the process and functioning of the machine and the items in particular he referred to the technical note which was submitted to the Assistant Commissioner of Customs during the processing of bill of entry. It is stated therein that coke oven bearing No. 7 will have 54 ovens and each oven, in a rotation of cycle lasting for about 20 hours, a stamped coke of coal will be charged and on completion of the heating cycle at the end of about 20 hours, the red hot coke will be pushed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1984 to TISCO to import some components of proprietary nature for SCP machines and CGC Car, (4) appellant's letter dated 1-6-1985 to DGTD explaining that components to be imported by them would be handed over to TRF so that complete machine can be fabricated by them and supplied to the appellants. Technical note and Ministry of Steel and Mines letter dated 9-1-1986 to Collector of Customs, Calcutta recommending that the imports be attested as 'project imports'. 37. Learned JDR referred to the relevant invoice dated 19-5-1987 wherein it was described as "Commodities : Two Nos. SCP Machine & One No. Charge Gas Cleaning Car complete with accessories as per Tata Ltd. Order No. 8230/PRJ-67201/T.018 and spares". He said that stamping system may be part of the stamping machine and stamping machine may be a part of the huge plant, but that is not the question to be considered herein. Whether part imported by the appellant is a complete machine by itself or not. According to him the items are complete by themselves since they are having essential/basic characteristics of the main machine. Referring to the page 1200 of the HSN (Harmonised System) he said that coke oven discharging mac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter. It was contended on behalf of the Revenue that the authorities below had no occasion to go into the additional evidence placed before the bench and the Tribunal should not have admitted such an additional evidence in deciding the issue. As a third member I cannot go into the question of admissibility of additional evidence or otherwise at this stage. Having referred the matter and on reference I am concerned and confined to the views expressed by the respective Members on material evidence available on record. As can be seen from the record the appellants have taken a plea from the beginning that the items were not complete machines by themselves but they were only parts and requested for inspection of the goods by an independent expert. The department should have acceded to the request made by the party to inspect the goods by an independent authority to arrive at the proper conclusion whether the items were parts or complete machines by themselves. Description and bill of entry by importers itself is not a determining factor in deciding the issue that goods were complete machines by themselves. Generally burden lies on the department in determining the classification ..... 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