TMI Blog2017 (6) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellant to poultry farms by classifying under Chapter Heading 84369100, as the Poultry Keeping Machinery are classified under Chapter Heading 84369100 of CET Act, 1985 - the correct classification of the impugned goods is under Chapter Heading 84369100 of CETA - the demands are not sustainable - appeal allowed - decided in favor of appellant. - E/51954/2014 - A/61031/2017-EX[DB] - Dated:- 2-6-2017 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) Sh. Ajay Jain, Advocate for the Appellant Sh. G.M. Sharma, A.R. for the Respondent ORDER Per: Ashok Jindal The appellant is in appeal against the impugned order demanding duty along with interest and imposing penalty on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that is Battery Cages be classified under Tariff Sub Heading 84369100 which was modified by the order dt. 03.01.2006 stating that it has wrongly mentioned as 85369100. in fact its correct classification is 84369100 and cleared the goods by paying an amount of 10% of the value of the said goods as per Rule 6(3)(b) of the Cevat Credit Rules, 2004. It is further submitted that as these items are properly classifiable under Chapter 84369100, therefore, and same has been decided by this Tribunal in the case of Shiva Poultry Equipments Vs. CCE, Chandigarh-II vide Final Order No.61003/2016 dt. 12.07.2016. Therefore, impugned order is to be set aside. 4. On the other hand Ld. A.R. Submitted that in the case of M/s Azra Poultry Equipments V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Chapter Heading 8436.99. We note that this decision is in respect of the Central Excise Tariff existing during the period 1999-2000, whereas the Hon ble High Court's decision is in respect of the tariff as it existed in the late 1980s. We also further note that the Central Excise Tariff was switched over to 8 digit classification in 2005. The classification of the goods in the impugned order covering the period 2009-13 is to be decided on the basis of 8 digit tariff existing at the time of the present proceedings, viz. 2009-13. We have seen the entry no.8436 as it existed prior to 2005 and post 2005. The entry in the new tariff includes the parts of poultry keeping machinery which was included in this heading prior to 2005. The Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of Iron Steel, the classification indicated is Heading 7314. Further, we find that in the cases discussed above, where the classification of similar goods have been examined, it has been decided that the goods in question are more appropriately classifiable as parts of poultry machinery falling within the scope of tariff Entry No.84369100. For clear understanding of the above conclusion, we reproduced para 16 and 17 of the order dated 16-05-2014 passed by the Commissioner of Central Excise, Hyderabad, which read as under: 16. The assessee's plea regarding earlier period is correct. The classification of these items in their own case has been settled by the Hon ble Tribunal in the above mentioned case and reiterated again in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Delhi High Court order is held to be not binding on the lower appellate authority by the Hon ble Supreme Court while disposing of the SLP filed by the assessee. 17. On the legal position, it is seen that Tariff Heading 84369100 is not dealing with machinery or equipments perse but with parts of poulty keeping machinery or poultry incubators and broodes. Reading together Note-I of Section XV, Note-2 of Section XVI and the scope of the entry in the above Tariff heading, it is apparent that there is no changed circumstances to warrant the change of classification as already upheld by the Hon'bel Tribunal in the assessee's own case and followed by this office vide the above mention order in original for all the subsequent peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 7. As discussed above, we find that the issue of classification of welded wire mesh made specifically for poultry keeping is no longer res-integra. In line with the above discussion, the classification is ordered under 84369100. 8. The impugned order is set aside and the appeal is allowed. We find that the items in dispute are Battery Cages, Poultry Top/Bottom/Partition as poultry keeping machines which has been classified by Tribunal under Chapter Heading 84369100 of CETA, therefore, we hold that the correct classification of the impugned goods is under Chapter Heading 84369100 of CETA, accordingly, the demands are not sustainable. 9. With this observation, we hold that impugned order deserves no merit, hence, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X
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