TMI Blog2006 (10) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the Tribunal ruling of Chennai Bench in the case of CC v. Chowdary Enterprises (supra), we find no merit in the present appeal and dismiss the same. - Dr. S.L. Peeran, Shri T.K. Jayaraman, JJ. REPRESENTED BY : Shri Anil Kumar, JDR, for the Appellant. Shri G. Sampath, Advocate, for the Respondent. [Order per : S.L. Peeran, Member (J)]. The Revenue is aggrieved with the Order of the Commissioner (A) in No. 19/2004-C.E., dated 25-6-2004 dismissing the Revenue appeal and affirming Order-in-Original passed by the Deputy Commissioner in V/73/17/133/97-Class, dated 29-3-2000. Both the authorities have decided the issue pertaining to classification of parts of Poultry Keeping Machinery under Chapter Sub-Heading No. 8436 of CET. Revenue is claiming the classification under Heading 7314 of CET as Articles of Iron and Steel wire, such as welded mesh for commercial purpose and construction purpose in the form of sheets and rolls . Revenue contend that the item cannot be treated as falling under Chapter Sub-Heading No. 8436.00 of CET attracting nil rate of duty under the description Other Agriculture, Horticulture, Forestry, Poultry Keeping Machinery including Germi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally meant for the manufacture of cages in Poultry keeping machinery . The reasons stated in the grounds of appeal to set aside the classification under CETH 8436.00 are that the goods are not figuring in the HSN notes for the said heading and that it was decided by the Tribunal in the cases of M/s. Poultek Engineers reported in 2000 (117) E.L.T. 348 and in M/s. Anup Engg. reported in 1997 (95) E.L.T. 110 that the goods merit classification under chapter 73 as the constituent material is iron and steel only. M/s. Anup Engg. case reported above is not relevant to the impugned goods as this is a dispute about classification of a specific part and various parameters exclusive to the particular part have to be discussed before arriving at the classification and an order cannot be stated to be relevant unless the specific item is covered in the said order and in the case of M/s. Poultek Engineers. It is seen that the party M/s. Poultek Engg. for some reason could not contest and the Tribunal decided the issue ex parte without any averments having been heard from the party in that case. The Tribunal in that case has taken the decision to uphold the adjudicating authorities decision wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable in this case considering that the opinion expressed Circular No. 36/CX/4, dated 31-8-90 is clearly against the relevant section notes of the Central Excise Tariff Act, 1985. The appellant s contention that the goods are classifiable as articles of iron and steel as they are made of iron and steel only, does not have any bearing on the classification of the impugned goods as the general provision (B) to the Section XVI of the HSN clearly mentions that the goods of the Section XVI may be of any material and in majority of base metal. It is well settled law and the spirit of the Central Excise Tariff Act, 1985 that constituent material is not the only deciding factor to classify any machinery or part. In view of Note 2(b) to Section XVI of the Tariff, parts, if suitable for use solely or principally with a particular kind of machine, are to be classified with the machine of that kind. The exception to the Note is that parts of general use will not be covered by Section XVI, which covers Chapters 84 and 85. No evidence has been adduced by the Department to show that the impugned goods are parts of general use. The Tariff Heading CETH 8436 reads as follows: Other agricult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deny it the parentage and consign its residuary item is relevant here. I observe that the impugned goods are specially designed for the making of cages to form the battery in poultry keeping and the goods cannot be marketed for any other use and are called in commercial parlance as poultry keeping machinery parts only and no evidence has been placed on record to prove otherwise by the revenue. Hence, in view of the Hon ble Supreme court judgment in the case of M/s. G.S. Auto International Ltd. v. Collector of C. Ex., Chandigarh reported in 2003 (152) E.L.T. 3 (S.C.) wherein it was held that It needs to be ascertained as to how the goods in question are referred to in the market by those who deal with them, be it for the purposes of selling, purchasing or otherwise , the classification under the said CHSH 8436 appears to be correct. The function of the impugned goods is only for poultry keeping, meaning rearing, feeding, cleaning, egg collecting and other functions, which are fulfilled in combination with other components such as feeders and egg collectors and hence, in accordance with the section notes 4 to Section XVI of the Central Excise Tariff Act, 1985 also, the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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