TMI Blog2015 (2) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... al at Delhi applying the provision of Note 2 (a) of Section XVI held that the Torsion Shaft merits classification under Heading 84.83. In view of this settled legal position, in our considered view, we hold that the Forged Pinion is correctly and legally classified under 8483 10 99 as 'others' under the main tariff entry of Transmission Shaft. - Even though a goods is a part of any machinery but if it is specifically covered in a heading, in all cases of chapter 84 & 85, it shall be classified in that respective heading. Only those parts will classify as parts of any machinery in the heading of that machinery, which is not specified independently in any other heading. Therefore the goods in question though it is part of sugar machinery but since there is an independent entry for Cranks and Transmission Shaft provided in the schedule to the custom tariff, it will merit classification under CTH of Transmission Shaft as others i.e. 84831099. - Decided against the assessee. As regards the confiscation of the goods and imposition of redemption fine of ₹ 5 lakhs on the appellant, the fact that the goods confiscated by the ld. Adjudicating authority has never been seized nor prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. In the Bill of Entry the Appellant classified the goods under CTH 84831010 wherein the rate of duty applicable is @7.5% + 8% + 2%+1%+2%+1%+4%. The item covered the said heading is Crank Shafts for Sewing Machines . The Bill of Entry was facilitated under Risk Management System (RMS) for the clearance without the procedure of assessment and examination. On selection of the said Bill of Entry for post clearance audit (PCA), it was observed that the goods imported were not Crank Shaft for Sewing Machine , therefore it does not appear to be covered under heading 84831010. On enquiry of PCA vide it's letter dated 11.07.2007, the Appellant submitted that the correct classification is 84831099 and duty payable is 7.5% +16% +2%+1%+4%. This heading is for 'Transmission Shafts and Cranks' under 'other' category. According to the PCA the goods merit classification under CTH 84839010 as 'Parts of Sugar manufacturing machinery' and duty payable is 7.5% +16% +2%+1%+4%. The Appellant paid the differential duty amounting to ₹ 5,76,193/- and interest of ₹ 8525/- on 26.07.2007. It was alleged in the show cause notice that the Appellant has deliber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such situation of the redemption fine ought not to have been imposed. In support of his submission, he placed reliance on the following case laws: [1998 (101) ELT 549 (SC)] Northern Plastic Ltd. Vs. Collector of Customs Central Excise [2004 (163) ELT 359 (Tri-Kolkata)] Jay Kay Exports Industries vs. Commissioner of cus. (Port), Kolkata [2001 (135) ELT 1425 (Tri-Del)] Pawan Goel Vs. Commissioner of Customs, New Delhi [1996 (87) ELT 115 (Tri)] Straw Products Ltd. vs. Collector of Central Excise, Indore [2004 (174) ELT 171 (Tri-Del)] Shree Ganesh International vs. Commissioner of C.Ex, Jaipur [2009 (235) ELT 623 (Tri-LB)] Shiv Kripa Ispat Pvt. Ltd. Vs. Commissioner of C. Ex Cus., Nasik Ld. Counsel submits that the Appellant is not disputing differential duty demand and interest, which was admittedly paid. However, he prays for dropping the penalty and redemption fine. As regards correct classification he submits that the Appellant admitted that the goods in question is not classifiable under CTH 84831010 which was claimed by them in their Bill of Entry. However, the Appellant contests the revenue's claim of classification under CTH 84389010 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te between the Appellant and Revenue that the goods in question is of a class of Cranks and Transmission Shaft. However the revenue's contention is that since the goods is undisputedly for use in the Sugar manufacturing machinery, it merits classification under CTH 84389010. To ascertain the legal position of the issue, we have gone through the General Rules for the Interpretation of Custom Tariff and Section XVI notes and relevant Custom Tariff Entries, which are reproduced below The First Schedule-Import Tariff (See Section 2)General Rules for the Interpretation of this Schedule Classification of goods in this Schedule shall be governed by the following principle: 1. The titles of Sections, Chapters and Sub-Chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Ntoes and, provided Such headings or Notes do not otherwise require, according to the following provisions; Custom Tariff of India 2007-08Section XVIMachinery and mechanical appliances; electrical equipment; parts thereof; sound recorders and reproducers, television image and sound reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8483 10 92 ---- Crank shaft for engines of heading 8408 u 7.5% - 8483 10 99 ---- Other u 7.5% - 8438 Machinery, not specified or included elsewhere in this chapter, for the industrial preparation or manufacture of food or drink, other than machinery for the extraction or preparation of animal or fixed vegetable fats or oils 8438 10 - Bakery machinery and machinery for the manufacture of macaroni, spaghetti or similar products: 8438 10 10 --- Bakery machinery u 7.5% - 8438 90 - Parts: 8438 90 10 --- Of sugar manufacturing machinery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under CTH of Transmission Shaft as others i.e. 84831099. 5.2 As regards the confiscation of the goods and imposition of redemption fine of ₹ 5 lakhs on the appellant, the fact that the goods confiscated by the ld. Adjudicating authority has never been seized nor provisionally released, as the goods were not available for seizure. As of now it is settled legal position that if the goods is not available nor the same is released provisionally, redemption fine could not have been imposed. This issue has been dealt by the larger bench of this Tribunal in the case of Shiv Kripa Ispat Pvt. Ltd. (supra), wherein the larger bench relying on the judgment of Hon'ble Punjab and Haryana High Court in the case of [2008 (299) E.L.T. 185 (P H)] Commissioner of Customs, Amritsar V. Raja Impex and [1999 (112) E.L.T. 400 (Tri)] Chinku Exports vs. Commissioner of Customs, Calcutta , approved by Hon'ble Supreme Court as held that in a case where the goods is not available for confiscation, redemption find could not be imposed. Therefore following the ratio of the above judgment, we drop the demand of redemption fine of ₹ 5 lakhs, 5.3 As regards the imposition of penalty o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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