TMI Blog2019 (11) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... - Customs Appeal No. 51583 of 2019 - FINAL ORDER NO. 51379/2019 - Dated:- 15-10-2019 - HON BLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) AND HON BLE SHRI C.L. MAHAR, MEMBER (TECHNICAL) Shri Virendra Singh, Advocate for the appellant. Shri Rakesh Kumar, Authorized Representative (DR) for the Respondent. ORDER C.L. MAHAR :- The brief facts of the matter are that the appellant have filed a bill of entry No. 9298900 dated 20 May 2015 at Air Cargo (Import), New Delhi for import of the following items :- (i) AG 401 Laser Level Transmitter with battery pack and charter 100 nos. ; (ii) Single Grade Laser Package W/RC 602, Remote, HL 750 receiver 10 nos. ; (iii) AG GCS 100 Rigid Mass Package for Agriculture 100 nos. ; (iv) Yuma 2CLX Tablet PC 1 no. 2. The consignment of the above-mentioned goods was covered by the two invoices and imported from M/s Trimble Europe B.V. Netherlands. The appellant have classified the goods at Sl. No. (i) to (iii) under Customs Tariff Heading 84328090 and claimed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. 6. 399. 84 or any other Chapter, (A) The following goods, namely :- (i) Paddy transplanter; 2.5% -- -- 85364900 (ii) Laser land leveller; (iii) Reaper-cum-binder; (iv)Sugarcane harvester; (v)Straw or fodder balers; (vi)Cotton picker; (vii)Track used for manufacture of track type combine harvesters; (viii) Sugarcane planter; (ix) Root or tuber crop harvesting machines; (x) Rotary tiller/weeder (B) Parts and components required for manufacture of goods specified at (A) 2.5% -- 5 6.2 Perusal makes it clear that the exemption is available either to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lary to the completion of a manufactured product. (ii) --- (iii) --- 8. The Hon ble Supreme Court in the case of Union of India Vs. Keshedeo Shivprasad 2002 (145) ELT A 163 (S.C.) has held that incidental or ancillary process must be an integral and inextricable part of production or manufacture resulting in presenting a finished or manufactured product bearing a distinct name. In this case, it was held that duty on packaged tea packed from fully manufactured loose tea was not sustainable. However, the definition or test more commonly used for ascertaining whether manufacture‟ for the propose of attracting Central excise Levy has taken place or not is the one evolved by the Hon‟ble Supreme Court in U.O.I. Vs. Parle Products Ltd. 1994 (74) E.L.T. 492 (S.C.) and Ujagar Prints Vs. U.O.I. 1988 (38) ELT 535 (S.C.), according to which the activity or process in order to amount to manufacture must lead to emergence of a new commercial product, different from the one with which the process started. In other words, it should be an article with different name, character and use. Thus, a process wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation that these parts are not always in the term of kit are also not opined to be sustainable as is apparent from the invoices. The extra parts imported are for previously so imported machines, in addition to complete kit. There seems no reason to repeat the contention of the appellant that along with the kit the extra parts were imported for the other machines which were already in use. 11. Coming to the controversy of classifying the impugned goods initially under CTH 90153090 and subsequently, for availing the exemption, under CTH 84328090, we are of the opinion that the Rules of Interpretation shall help to adjudicate this controversy as per Rule 2(a) of General Rules of Interpretation Customs Tariff Act. Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or failing to be classified as complete or finished by virtue of this Rule), presented unassembled or disa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hapter 9015 instead of Chapter 8432 and under Serial No. 399(B) of Notification No. 12/2012 by forming a rigid opinion about the products imported to merely be the parts and components of the impugned agricultural machines. The findings are therefore hereby set aside, also for the reason that the Department has failed to discharge its onus to prove the activity of the appellant as manufacture while putting the imported parts/components into the agricultural machine called laser land leveller. 15. Finally coming to the issue of another Appeal i.e. about the penalty upon the Director of the importer, we are of the opinion that it is very much apparent from the statement of the Director recorded on 10.07.2015 that since they were using the parts and components hence were under bonafide impression to classify them under Chapter 90153 but after the Notification and exemption thereof came to their notice, and that they are not registered with Central Excise for manufacture, that they rightly classified their product under CTH 8432. From the findings as above, we have already opined that there is no fault in the classification arrived at by the importer. Thus, the bonafi ..... 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