TMI Blog2024 (1) TMI 1171X X X X Extracts X X X X X X X X Extracts X X X X ..... URING LTD. [ 2003 (9) TMI 180 - CESTAT, KOLKATA] and Hyundai Unitech Electrical Transmission [ 2005 (7) TMI 129 - CESTAT, MUMBAI] which held that Wind Mill Tower is a part of WOEG. This Tribunal in the case of Commissioner of Customs (Port--Import) Vs. Gamesa Wind--Turbines [ 2024 (1) TMI 736 - CESTAT CHENNAI] has held that the imported flanges with specific part numbers are the parts required for Wind Operated Electric Generators (WOEG) classifying them under CTH 85030010 and to be eligible for the benefit of Notification No. 12/2012--CE (Sl.No. 332). The appeal filed by the Department is without merits and as such cannot be sustained - Appeal of Revenue dismissed. - MR. S.S. GARG, MEMBER (JUDICIAL) AND MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) For the Appellant : Shri R. Rajaraman, Assistant Commissioner / A.R. For the Respondent : Shri M. Karthikeyan, Advocate ORDER Customs Appeal No. C/41383/2014 has been filed by the Revenue against the Order in Appeal No. 465/2014 dated 17.03.2014 of the Commissioner of Customs (Appeals), Chennai. 2.1 Brief facts of the case are that M/s. Suzlon Towers and Structures Ltd., Chennai since merged with M/s. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assembling metal structural elements of round cross--section (tubular or other). These devices usually have protuberances with tapped holes in which screws are inserted, at the time of assembly, to fix the clamps to the tubing . iv. The Explanatory Notes to the HS heading 8502 is reproduced below: 85.02--Electric generating sets and rotary converters. -Generating sets with compression--ignition internal combustion piston engines (diesel or semi--diesel engines): 8502.11-- Of an output not exceeding 75 kVA 8502.12-- Of an output exceeding 75 kVA but not exceeding 375 kVA 8502.13-- Of an output exceeding 375 kVA 8502.20-- Generating sets with spark--ignition internal combustion piston engines -Other generating sets: 8502.31----Wind--powered 8502.39----Other 8502.40--Electric rotary converters (1) ELECTRIC GENERATING SETS The expression generating sets applies to the combination of an electric generator and any prime mover other than an electric motor (eg., hydraulic turbines, steam turbines, wind engines, reciprocating steam engines, internal combustion engines). Generating sets consisting of the generator and its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tower cannot be considered as part of wind powered generating set classifiable under heading 8503. (vii) As per United States International Trade Commission Rulings and Harmonized Tariff Schedule in HQ 964757 regarding classification of Steel Towers for wind driven turbine electric generator classified the towers under heading 7308 and discussed it at length. As per that ruling: Not every article used with another article is necessarily a part of that other article in a tariff sense. Parts, for tariff purposes, are integral, constituent components of another article, necessary to the completion of that article, and which enable that article to function in the manner for which it was designed. We understand and accept that structurally, an individual tower and its turbine generator must be a mated pair, with each tower specially manufactured according to the size, weight and other specifications of the turbine generator. Nevertheless, the towers are not working parts of the turbine generator and provide no operational or mechanical interaction with it. A combination turbine and electric generator is a complete, fully functional article of commerce in and of itself, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituted vide notification 05/2005 dated 01.03.2005 with entry Wind operated electricity generator, its components and parts thereof including rotor and wind turbine controller . It clearly shows that the exemption is limited to wind operated electricity generator only and not meant for the wind power generation system or power plants. 2.3.2 As the type of tower is optional and they do not provide operational or mechanical interaction with the Wind operated electricity generator, they cannot be considered as the parts or components of the Wind operated electricity generator and accordingly the benefit of exemption is not available. The law is well settled that when a specific entry in the Tariff Schedule is available, then the refuge under residual entry cannot be taken. In this regard reliance is placed on the Hon'ble Supreme Court decision in the case of Commissioner of Central Excise Vs. Wockhardt Life Sciences Ltd. [2012 (277) ELT. 299 (S.C.)]. 2.3.3 The Order--in--Appeal has relied upon the following case laws to set aside the Order--in--Original without taking into consideration the rebuttal of the same already mentioned in the Order--in--Original and other case laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 7308.20, they have been rightly held to fall for classification under the above heading . The Tribunal has ruled that as heading 7308 is more specific and hence the towers to be classified under heading 7308. Consequently, Flanges which are parts of Wind Mill Tower cannot be accorded the benefit of the exemption Notification treating them as parts of WOEG. 3. 1 The Ld. Advocate Shri M. Karthikeyan representing the Respondent has filed a detailed memorandum of cross objections/cross appeal inter alia on the following grounds: i. The SCN dated 11.5.2012 does not propose to re--classify the imported flanges from heading 85030010 to heading 73072100 nor it propose to deny the benefit of exemption notification claimed for adopting NIL rate of CVD. ii. The SCN unilaterally held that the imported flanges are classifiable under heading 73072100 and accordingly proposed to demand differential duty. Hence, the demand is not legally sustainable at all. iii. The respondent had vide their reply to SCN contested the demand by submitting that the imported tower flanges are parts of WOEG and placed reliance on the circular dated 05.08.1997 which clarified that the Tower constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally held that imported towers sections of WOEG are classifiable under heading 8503 and not under Chap 73. 3.2 The Respondent has further submitted that the Larger Bench of Hon'ble Tribunal In the case of Rakhoh Enterprises reported in 2016 (11) TMI 1207 following the above decision of the Apex Court held that Windmill doors, anchor rings and load spreading plates are parts of tower and are parts of WOEG which are eligible for exemption. 3.3 Following the above decision, Chennai Tribunal in the case of Barga India Private Ltd [2023 (7) TMI 428] had held that the Aluminium Structures and Fabricated Items used in towers are integral parts of WOEG. Further, this Hon'ble Tribunal in the case of RRB Energy Ltd. [2023 (3) TMI 754] has held that the tubular towers are eligible for exemption as parts of WOEG. The Mumbai Bench of the Tribunal in the case of Pushpaman Forgings [2017 (2) TMI 100] had held that Flanges which are parts of tower are eligible for exemption as parts of WOEG. 3.4 The Ld. Advocate has drawn our attention to the decision of Chennai Tribunal in Final Order No. 40007/2024 dated 03.01.2024 in the case of Sew Eurodrive India Private Ltd., had held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1999 (108) ELT 448], Techno Fab Manufacturing Ltd. [2003 (158) ELT 515] and Hyundai Unitech Electrical Transmission [2005 (187) ELT 312] which held that Wind Mill Tower is a part of WOEG. 7.2 We find that in the case of Vestas Wind Technology [2014 TIOL 237 CESTAT AHM], the Tribunal Ahmedabad specifically held that imported tower sections of WOEG are classifiable under heading 8503 and not under Chapter 73. Even, in the case of Rakhoh Enterprises [2016 (11) TMI 1207], the Larger Bench of the Tribunal held that Wind Mill Tower are parts of WOEG which are eligible for exemption. 7.3 The Ld. Advocate has also referred to the decisions of the Tribunal in the case of RRB Energy Ltd. [2023 (3) TMI 754] wherein it was held that the tubular tower is eligible for exemption as a part of WOEG. The Mumbai Bench of the Tribunal in the case of Pushpaman Forgings [2017 (2) TMI 100] has held that flanges are parts of tower and are eligible for exemption. The decision in the case of Sew Eurodrive India Private Ltd. vide Final Order No. 4007/2024 dated 03.01.2024 was also referred to where imported flanges are classified under heading 8503 and not under 7307. 7.4 This Tribunal in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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