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2016 (9) TMI 412 - CESTAT MUMBAI

2016 (9) TMI 412 - CESTAT MUMBAI - TMI - Refund - classification - press tool dies - heading 82.05 of the First Schedule to the Customs Tariff Act, 1975 - heading 84.45/48 of the First Schedule to the Customs Tariff Act, 1975 - CVD - tariff item 51A - tariff item 68 - manufacture of jeeps - supply of tools and dies by overseas entity - Held that: - the heading 8205 turns on the expression ‘interchangeable’. Here a peculiar situation arises. While the Tribunal in Purewall & Associates Ltd v. Coll .....

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r expediency but as an unavoidable necessity - matter to be placed before the Hon’ble President for reference to a Larger Bench to resolve whether the decision of the Tribunal in re Purewall & Associates Ltd is the correct proposition of law or that of the view expressed in re Bajaj Auto Ltd. - C/442 to 445/2004 - A/88825-88828/16/CB - Dated:- 28-7-2016 - Shri MV Ravindran, Member (Judicial) and Shri C J Mathew, Member (Technical) Shri MH Patil, Advocate for the appellant Shri K Puggal, Asstt. C .....

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51A or Tariff Item 68 of the Central Excise Tariff. Departmental authorities favoured Customs Tariff Heading (CTH) 82.05 and TI 51A. Relying almost entirely on the decision of the Tribunal in New Haven Steel Ball Corporation Ltd v. Collector of Customs [1991 (56) ELT 761 (Tribunal)] and Bajaj Auto Ltd. v. Collector of Customs, Bombay [1994 (74) ELT 312 (Tri.)], the impugned order confirmed the rejection of refund claim by the lower authority. 2. One appeal has been filed against the order in ap .....

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rted goods classified under heading 846694 of First Schedule to Customs Tariff Act, 1975 vide order dated 28th March 1997, sought for in refund claim and rejected, came up before the first appellate authority as appeal no. S/49-60/97 CL and was remanded back vide order dated 25th February 1999. 4. Two other appeals, S/47-08/98CL and S/49-16/98CL, sought refund for ₹ 17,15,473 and ₹ 1,16,615/-by claiming classification under 846694 of First Schedule of Customs Tariff Act, 1975 instead .....

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Schedule to the Central Excise Tariff Act, 1975. 6. In the erstwhile tariff for 1985-86, interchangeable tools were classifiable under 82.05 while for the period from 1986-87 it is classifiable under 8207.30 whereas what earlier had been under 84.45/48 i.e. tools for use with machines in the erstwhile tariff of 1985-86 was, with effect from 1986-87, classifiable under heading 846694 when the old tariff was substituted. 7. The appellant is in the business of manufacturing vehicles known as jeeps .....

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fication under 82.05 decided upon by the assessing officer is: Interchangeable tools for hand tools, whether or not power-operated, or for machine-tools (for example, for pressing, stamping, punching, tapping, threading, drilling, boring, broaching, milling, turning or screw driving), including dies for drawing or extruding metal, and rock drilling or earth boring tools. 9. On the other hand, importer claims classification 84.45/48 described as: parts and accessories suitable for use on solely o .....

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on metals, and that each such press tool-die can work only in conjunction with a specified press. It is consequently their submission that the press tool/die is a part and parcel of a specific machine tool which is not interchangeable. 11. Learned Counsel for the appellant submits that these are not interchangeable tools and are designed for a specific end-use and that the findings in the impugned order that press tool-dies were excluded from classification under Chapter 84 by placing reliance o .....

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Tribunal), Pharmachine Mfg. Co. v. Collector of Central Excise [1999 (107) ELT 624 (Tribunal)], Sarda Industries v. Collector of Customs [1989 (41) ELT 560 (Tribunal), Commissioner of Central Excise v. Sundaram Fasteners Ltd [1999 (111) ELT 796 (Tribunal), Lohia Starlinger Ltd v. Collector of Customs [1992 (57) ELT 105 (Tribunal), Government Tool Room and Training Centre, Rajajinagar v. Asstt. Collector of Central Excise, Bangalore [1982 (10) ELT 898 (Kar.), Delhi Kanodia Tin & Drum Factory .....

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d Representative highlighted the specific findings of the first appellate authority and placed emphasis on the importance of the expression interchangeable in heading adopted by the assessing officer. Reliance was placed on the decision of the Tribunal in Bajaj Auto Ltd. v. Collector of Customs, Bombay [1994 (74) ELT 312 (Tri.)]. 13. Appellant is aggrieved that their claim was rejected by the lower authorities without considering their submissions. According to Learned Counsel, the dies/tools .....

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is the appropriate entry. 14. In re Prince Metal Works, the Tribunal held that dies used in press machine for manufacture of motor vehicle parts are to be classified as parts of the machine with which they are intended to be used. In re Jay Engineering Works Ltd it was held that only where a tool/die can be used for more than one purpose it would be classifiable under 84.59 of the Tariff prior to 1986. The proposal of Revenue to classify punches and dies under heading 82.07 for levy of Central .....

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as held by the Tribunal in Purewall & Associates Ltd v. Collector of Customs, Bombay [1984 (15) ELT 490 (Tribunal) by interpreting the expression interchangeable. . It was held in re Lohia Starlinger Ltd that dies for a specific output is not amenable to description as interchangeable and, therefore, would be classifiable under Chapter 84 of the Tariff. That these fell within the erstwhile Tariff Item 68, and not Tariff Item 51A as claimed by the Revenue, was held in favour of the assessee .....

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es it is clear that the scope of Heading 82.05 covers those tools which are unsuitable for use independently but are designed to be fitted into hand tools, machine tools and other tools specified in that heading. We are persuaded by the views of the two member bench that interchangeability in the sense in which it is used in the tariff heading has to be with reference to a particular machine, and does not mean that the tool itself should be capable of performing different jobs. The definition of .....

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each die or similar tool which should otherwise be classifiable under Heading 82.05 would fall for classification elsewhere and the net result would be that Heading 82.05 would be rendered nugatory and surplus. On the argument that each one of a set of dies produces different parts and the die would, therefore, not be interchangeable with each other, they would not fall for classification under Heading 82.05. It would be observed that if one die is imported it would be classifiable under Heading .....

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reasons discussed above, if this point had been brought to its notice a different view would well have been taken. It has, therefore, to be held that the decision in Purewals case does not have value precedent. Shri Hidayatullahs argument that the Explanatory Notes were brought to the notice of the Bench as evidenced to the reference in para 4 does not persuade us. This is because the point with reference to the Explanatory Notes was not the question of interchangeability within the meaning of .....

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as figuring in Heading 82.05. No doubt, this decision was passed after the decision in New Haven Steel Ball Corpn. Ltd. However, it is evident that the latter case was not pointed out to the Bench which decided the Lohia Starlinger case. If it had been pointed out, the decision could well have been different. The Lohia Starlinger decision has, therefore, to be distinguished. and the manner in which the applicability of decisions cited by the appellant, i.e. Purewall & Associates Ltd., Delhi .....

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Notes, merely to examine the scope of heading 8205 beyond hand tools. While acknowledging that Lohia Starlinger which did go into the Explanatory Notes, Bajaj Auto Ltd felt disinclined to follow it as it held to have been decided upon without awareness of decision in re New Haven Steel Ball Corpn. v. Collector [1991 (56) ELT 761 (Tribunal)]. 17. We note that, in re Bajaj Auto Ltd., there is specific reference to the outcome of the appeal in re Purewall & Associates and Delhi Kanodia Tin &am .....

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