TMI Blog2008 (5) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... nch, Court No.2. 2. The fact that the crane in question was imported for using the same in setting up a refinery is not in dispute. What is in dispute is that whether a crane when placed on a vehicle which the appellant wrongly stated to be a 'motor vehicle' would fulfill the description of a mobile crane or a 'material handling equipment'. Valuation of the said crane was also questioned. The fact that different parts of the said crane were imported by the respondent herein as second hand equipment is also not in dispute. It is, however, accepted that the original manufacturers of the two part of the said equipment were different. We may, at the outset, notice that the Notification dated 11.4.1997 was issued by the Central Government, in exercise of its power conferred upon it under Section (1) of Section 25 of the Customs Act, 1962, being satisfied that it was necessary in the public interest so to do, made further amendment in notification No.11/97, CUS. dated 1.3.1997, the relevant entry whereof is as under : "(1) (2) (3) (4) (5) (6) 144A 84 or any other Chapter Goods specified in List 8A required for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from 20.11.1997 for supply of the crane and the trailer. Pursuant to and in furtherance of the said contract, a heavy duty platform ringer mobile crane and other equipments were imported on or about 31.1.1998 wherefor the bill of entry contained the following declaration in respect of the said goods as: "(a) Heavy Duty Platform Ringer Mobile Crane and Grove MZ90 sky Worker Mobile Crane. (b) Fork Lift Manitw - HT-3500." 5. Indisputably, the said item was imported in a dismantled condition in 146 packages showing the consignment to be falling under Chapter Sub-Heading 8426.19 and 8427.90 respectively of the Customs Tariff. 6. Respondent claimed the benefit of concessional rate of duty in terms of the said notification showing the value of the imported item to be US $ 34,84,500 (CIF). The said declaration of valuation was made for custom purposes only. 7. On the premise that the value declared therein was inadequate and/or ingenuine, the valuation thereof was assessed by Jawahar/Mumbai Customs House through an expert. It was opined : "That the 6 Line Trailers (self propelled modular transport system) supplied along with Platform Ringer Crane could not be trea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier while dispatching the same for the sake of convenience in transport and the same has been re-assembled at the site. It appears that this has been misunderstood by the lower authority and it has been held that these are two separate items. I find substantial force in the contentions raised by the appellants in this regard that these are not two separate items but a single mechanical unit." As regards classification of the said goods, it was held : "In the present case, the crane and 8 SPMTS have been imported as an integral unit, as independently they cannot perform the work for which they have been imported and for this purpose the crane has been mounted on the 8 SPMTS to provide mobility and therefore, both the goods have to be considered as a one single unit. The heading 87.04 is in respect of "Motor Vehicle for the transport of goods" and the disputed goods 8 SPMTS are not motor vehicles, they have been specifically designed to make the crane mobile. Therefore, in any view of matter, the classification of 8 SPMTS under chapter heading 8704.90 is ruled out. For the reasons given above, the 8 SPMTS is an integral part of Platform Ringer Crane and would merit classification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered in the landing charges, since they cover the totality of all that an importer expends for bringing imported goods from ship to land. Further, I find that for resorting to Rule 5 of the Customs Valuation Rules, 1988, the value can be determined on the basis of "similar" or "identical goods". These terms are defined u/s.2(1))c) and (e) of these aid Rules. As per the definition of these terms, identical goods or similar goods mean the imported goods which are same in all respects, including physical characteristics, quality and reputation, produced in the same country and produced by the same person. It is seen from the literature of both the items that these two cranes are not similar. The Platform Ringer Crane moves in a ring and for the purpose of mobility it has been mounted on 8 SPMTS, whereas, the comparable crane is a Crawler Crane, as the name suggests it has crawler mechanism which distinguishes it from the crane in question, the present crane has 8 SPMTS which are not there in the crawler crane, the crawler crane is new, the crawler crane is certified to move on its crawlers with 75% of its maximum load on the hook which is its unique feature, the year of manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chartered Enginer, whose name appears at Sr.No.6 of Appendix 32A, wherein he has certified the fair market value of the goods, which is the same as has been declared by the appellants. Therefore, I find that there is no legal justification for enhancing the value of the imports made in the present case. 12. The Commissioner (Appeals) furthermore found that the assessment having been made behind the back of the respondent, the same was violative of the principles of natural justice. 13. The Tribunal agreed with the said findings of the Commissioner noticing several Chapter Headings. It was found that such mounted cranes primarily used for hauling pressing or changing the site of operation at this, shall would be classified under Heading 84.26 or under Heading 8431 even if presented with the tractor (whether or not mounted thereon), such tractors, with its operating equipment are to be classified separately under Heading 87.01. 14. Noticing the notes on machine mounted on tractor type appears under Heading 84.26, it was held : "The word 'presented separately' in the HSN chapter note has to be interpreted 'Imported independently of a lifting device of a Crane' and not w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present import with the values of a Crawler Crane CC- 12600 an accepted Mobile Crane imported at Jawahar Custom House to be identical and similar to goods herein only on the grounds of Lifting Capacity of the Crawler Crane CC-12600 and the present imported Crane to be same and thereafter taking the purchase price of Crawler Crane CC-12600 as available in the literature to be DM 25 Million in 1997 and then applying the valuation to the crane in the present case cannot be upheld. One cannot appreciate comparison valuation, as arrived at, merely on capacity basis when goods are of different models old machinery with different usage and have 'Opportunity Costs' inbuilt for such specific old used machinery. The application of Best Judgment Rules also has to be in conformity with the Valuation Rules. One cannot compare unlike or dissimilar goods, to arrive at valuations based on by comparable goods rules, even under best judgment rules. The proposal as made in the appeal cannot be therefore upheld. (ii) CC (Appeal) in the impugned order has dealt with the aspect of valuation in extension in para 11 and we find no valid grounds to repeal those findings." 15. Learned Solicitor Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handling equipment. The findings of fact, as noticed hereinbefore, were arrived at by the Commissioner (Appeals) as also by the Tribunal. TheCommissioner (Appeals), while accepting the respondent's case, had considered the report of the expert thoroughly. 19. Submission of learned Solicitor General, that the observation of the tribunal to the effect "(T)he note 3 to Section XVI that when a combination of machines, the Ringer and propellers imported in this case are intended to contribute together for a clearly defined function, governed by one of the headings in Chapter 84, lifting special machinery on this case at different sides, then the whole folk to be classified in the heading appropriate to that function. Therefore, propelling base in this case, which is presented as imported along with ringer crane cleared on the same BE, consisting of 8 haulage SPMTs in this case, are not elements presented separately for assessment in this case. They have been imported as a specific configuration set along with the Ringer Crane, platform etc.; are not clear, may not be correct. The Appellate Authority having considered the matter from several angles, it was not necessary for the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wordings used therein have to be given its natural meaning. The purpose must be allowed to be achieved. The words 'all types of materials' should be construed widely. 22. We, therefore, are of the opinion that in view of the entries an furthermore the purport and object the notification sought to achieve, the Commissioner (Appeals) and the Tribunal cannot be said to be wrong in their findings that the equipment in question would be entitled to the benefit of exemption. 23. So far as the valuation aspect is concerned, why a different view has been taken from the one disclosed in the invoices has not already been spelt out by the assessing authority. The valuation was found to be a plausible one. It was a second hand machinery. Valuation of the equipment which was in the mind of the expert of the equipment in question was found as of fact to be of different nature. Those who deal with valuation of a second-hand machinery and valuation of a newly manufactured equipment may be different persons. No fraud on the part of the assessee has been alleged. No illegality or any suppression has also been alleged. 24. The Appellate Authority has gone into the said question at some ..... X X X X Extracts X X X X X X X X Extracts X X X X
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