TMI Blog2001 (6) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... as part of gear reduction along with the benefit of Notification No. 49.95. The Commissioner (Appeals) in the impugned order however did not agree with the contention of the assessee that the impugned goods were eligible for classification under heading 8493.90 as part of gear unit. However, going by Section Note 2(a) of Sec. XVI, he held the item to be classifiable along with main unit and upheld the classification under heading 8483.90 and the claim for the benefit of the concessional rate under the Notification. It is necessary for the purpose of appreciating the Revenue s appeal to extract the main findings of the Commissioner (Appeals) in paras 7 to 13 herein below : 7. I have carefully considered the written and oral submissions m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bustion piston engine. The lubricating oil is supplied to the gear unit only in the engine and not to any other part. Therefore, it stands to reason to infer that the impugned medium lubricating pump for internal combustion engine was specifically covered by the sub-heading 8483.90. The Explanatory notes to HSN page 1180 for the goods falling under Heading 84.13 clearly indicate that one of the items covered is gear pump. It is further stated that in respect of the gear pumps, the liquid is displaced by teeth or specially shaped gears. This fully tallies with the situation prevailing with the appellant in the instant case and there is no reason why the impugned goods should not be taken as specifically covered by Heading 84.13 (sub-heading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be taken as covered by CN No. 49/95. 13. It is seen that the appellant s claim for the concessions under the aforesaid Notification was with reference to sub-heading 8482.90 and not with reference to Heading 84.13 (sub-heading 8413.30). However, the concessional rate claimed for assessment remains the same under the aforesaid Notification in respect of both sub-heading 8413.30 and sub-heading 8483.90. Hence, I am inclined to allow the appeal. 2. The Revenue seeks for confirmation of the order-in-original which is based on the flow diagram, HSN explanatory note as well as based on the Examiner s report. It is contended that the item is required to be considered as an independent machine as it has independent function for classificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the unit is a separate complete unit which can be connected to the gear by connecting pipe from a distance. He submits that the physical examination conducted by the Group also confirms examination report of the Docks. The catalogue produced by them also shows this as a lubricating unit which conforms to the examination report. Therefore, the item having independent function cannot be treated to be dependent on the gear box. Therefore, the classification adopted at the first instance was in keeping with the Dock report, appraiser s report and the assessee s own catalogue and the HSN Notes. Therefore, the impugned order is required to be set aside and the appeal allowed. 4. On the other hand the learned Counsel for the respondents filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by which the transmission of Power is modulated. The Lubrication Unit is connected to the Gear Box with the help of Pipes and the Lubrication Oil Unit not only pumps the lubricant to the Gear Box but also the Lubrication Oil Unit draws the lubricant from the same Gear Box Unit, thereby setting up a complete circulation system. The Lubrication Oil Unit will run only when the Gear Box is in operation and also the Gear Box cannot run without the Lubrication Oil Unit in satisfactory operation thereby proving the interdependence of the units. This is also emphasized by the Caution Note in the Product Technical Manual of the supplier of the Gear Box which specifies as under: THE GEAR REDUCER WILL RESULT IN FAILURE WITHOUT LUBRICATION OIL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stem according to the learned Counsel cannot function independently as is clear from the technical literature, drawing and the written notes given by them and the findings arrived at by the Commissioner (Appeals). The Commissioner (Appeals) has arrived at a correct conclusion that residuary entry cannot be taken for classification when specific entry is available. He also took us through Note 2(a) Section XVI in support of his plea that when a machine is to function along with another machine and both are interdependent, then the classification has to be done on the basis of the main machine. Therefore, Section Note 2(a) of Section XVI will have precedence over the grounds taken by the Revenue in their appeal which is based on the Examiner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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