TMI Blog2006 (12) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... KD condition. In the case relating to M/s. Flat Products Equipments Ltd. [ 1999 (8) TMI 270 - CEGAT, MUMBAI] , there is a clear claim by the party that the entire material required for manufacture of Rolling Mils come into their factory for preassembly, inspection and testing which has been accepted by the Tribunal. In the case relating to M/s. Vishwa Industries [ 1998 (9) TMI 239 - CEGAT, CALCUTTA] , there is a finding that the items were cleared in CKD condition as complete system for the purpose of transportation. In the case relating to BHP Engg.[ 2000 (3) TMI 92 - CEGAT, COURT NO. II, NEW DELHI] , the, dispute relates to non-observance of procedure prescribed in Ministry s letter dated 10-3-93 in respect of piecemeal clearance of all parts for a complete conveyor. Further, the very same components while cleared by the appellant for maintenance purpose are being assessed under Chapter 8431. The classification cannot change merely because they were supplied under a single contract. This view has been supported in the case of CCE v. Kone Elevators India Ltd.[ 2001 (6) TMI 142 - CEGAT, CHENNAI] . Thus, Commissioner s finding on classification and demand of duty cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocured goods over a period of time (sometime stretching beyond a year) depending on the progress of the work as per contract. They also supply parts and components in pursuance of maintenance contract. (iii) The goods cleared by them under the contract for supply of lifts/escalators has all the essential characters of the lift/escalator and should be classified only under Chapter 8428 attracting lower rate of duty. Only parts and components supplied for maintenance contract should be classified under 8431. (iv) Notes 2(a) of Section Note of Chapter XVI and Rule 2(a) of Interpretative Rules should be applied in their case and the entire clearances made in pursuance of contract for erection should be subject to duty at the rate applicable to lifts/escalators/machinery. (v) The language of heading 8431 read as under : - Parts suitable for use solely or principally with the machinery of heading Nos. 84.25 to 84.30. It is to be noted that the unlike in many other Chapter headings word used as parts with instead of parts of . (vi) In support of their claim that the essential characteristics are satisfied, they relied on the affidavit dated 12-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court of Bombay on the rival contentions as per judgment dated 27-8-2002 [2003 (151) E.L.T. 499 (Bom.)] are as follows :- Having heard the rival contentions and having examined all the citations referred to hereinabove, we are clearly of the opinion that the same shall apply to the facts of this case in full force and item in question being immovable property cannot be subjected to excise under the tariff heading claimed by the Revenue. The case sought to be made out by the petitioner is also covered by the decision of the Government of India in reference: Otis Elevator Company (India) Ltd. - 1981 (3) E.L.T. 720 (GOI), wherein it was clearly held that if an article does not come into existence until it is fully erected or installed, adjusted, tested and commissioned in a building, and on complete erection and installation of such article when it becomes part of immovable property it cannot be described as goods attracting levy of any excise duty. Thus applying the ratio of all the above judgments including the order of the Government of India referred to hereinabove, the case sought to be made out by the petitioner has to be upheld. The contention sought to be advanced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pune - 2000 (124) E.L.T. 266 (Tri) (vii) Wesman Engg. Co. Ltd. v. CCE, Cal-III - 2002 (150) E.L.T. 644 (Tri-Kol) (viii) Godrej Boyce Mfg. Co. Ltd. v. CCE, Mumbai-II - Order No. A/429-432/WZB/06/C-I/EB dt 28-2-06 (ix) CCE, Pune v. Buckau Wolf India Ltd. - 2001 (130) E.L.T. 661 (x) Walchand Nagar Industries v. CCE - 1998 (97) E.L.T. 268 (Tri). 6. We have carefully considered the rival submissions. The issue to be decided is whether items cleared by the appellant in terms of a contract for complete lift/escalator should be classified under Chapter tariff heading 8428 as contended by the appellant or as parts falling under 8431 as held by the department. The description of the tariff heading 8428 and 8431 and Section Note 2(a) of Section XVI of CETA are reproduced as under :- 8428 : Other lifting, handling, loading or unloading machinery (for example, lifts, escalators, conveyors, teleferics) 8431 : Parts suitable for use solely or principally with the machinery of heading Nos. 84.25 to 84.30 Section Note 2(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the appellant company has manufactured lifts/escalators in their manufacturing unit, the answer is clearly no. In this context, unequivocal finding of the Hon ble High Court of Bombay in their own case that lifts/escalators come into existence only at the customer s site is relevant. 10. Whether the application of Interpretative Rules will treat the various components (including the components/sub-assembly which are according to the appellants imparting essential characteristics of a lift) as classifiable under chapter 84.28 as lifts/escalators ? 11. It would be appropriate to consider an example. If somebody orders for a car, and if the car manufacturer delivers all the parts, components, sub-assembly like body, engine, brake assembly, dash board, doors etc. packed in cartons or in bags will that amount to a car being supplied? If it is imported in such form, for classification under the Customs Tariff, it will amount to a car. If a domestic manufacturer gives these parts in the above form it cannot be held that he has manufactured and cleared a car. On the other hand, if somebody chooses to clear a car minus the tyre, whether it should be treated as a car? In such a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
