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TMI Blog1994 (2) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... 69/87." 2. When the case was called on 9-11-1983 none appeared for the appellants. They had however furnished a written submission and had requested for the leave of absence from the personal hearing on 9-11-1993. 3. In the written submission the appellants have furnished the technical write-up in respect of the import of Circular Saw Blades (Friction Type) vide bill of entry No. 011609 dated, 13th June 1988, as directed by the Tribunal at the last hearing on 22th April, 1993. 4. They also furnished drawing No. 08-19-C-189 regarding the Tooth Profile for Flying Saw Cutter as also the Leaflet of the stores (Taiyo Engineering Inc. Japan) regarding high stage Friction Saw Blades. 5. As regards the query raised by the Hon'ble Tribunal during the previous hearing as to how the refund application was filed when the bill of entry was assessed by the Assistant Collector and why a regular appeal under Section 128 of the Customs Act was not filed before the Collector (Appeals) after obtaining a speaking order from the Assistant Collector, it has been explained that as per the long established practice at the Bombay Custom House the bills of entry were assessed by the Appraisers and were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o cut the pipes in continuous process and hence these have to be classified under Chapter 84. The appellant submits that the goods imported by the appellant are not in the nature of interchangeable tools, and therefore these are not classifiable under C.T.H. 82. The Appellant submits that as per Section Note 2(a) of Section XVI, parts of machines (not being parts of the articles of Heading 84.84, 85.44, 85.45, 85.46 & 85.47) have to be classified in Chapter 84 or 85 as the case may be. The appellant submits that the goods imported by the Appellant are the parts of Flying Cut Off Machine falling under C.T.H. 8461.50 and are therefore correctly classified as per C.T.H. 8466.93. 8. The Ld. SDR narrated the brief facts of the case. In this case Circular Saw Blades falling under Chapter 82 and which are parts of machinery falling under Heading 84.61, have been classified under Heading 98.06. 9. The appellant had filed a refund claim on the ground that the said goods were classifiable under Heading 8202.99. The claim had been rejected by the Assistant Collector Customs on the ground that the goods were parts of machines falling under Chapter 84/85 and were covered under Heading 98.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classification under Chapter 82. 17. In the present impugned order, the Collector (Appeals) has found, on a perusal of the catalogue and the drawing of the machines and that of the goods imported that the Circular Saw Blades imported are designed to be used only with the cutting machine. As against this, in the order in Appeal No. S/49-184/89-CL issued on 6-2-1990 relating to similarly described Tennin Brand Circular Saw Blades (Friction Type) the Collector (Appeals) had found that the blades have been made to the appellant's specification with reference to their drawing and were not parts of the general application nor were they available Off the Shelf nor are they ready for sale in the market and had further concluded that these blades are therefore, a part of the cutting machine falling under 8461.50 and also that the blades are not tools and as such are not classified under Chapter 82. We had therefore, allowed the benefit of Notification 69.87 (supra). It would appear also that this decision of the Collector (Appeals) has been accepted and refund has also been granted to the importer. Therefore there is an apparent contradiction in the findings of the Collector (Appeals) with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e there is an apparent conflict between the various provisions of the Tariff and the exemption Notification, as far as possible a harmonious interpretation which avoids the apparent conflict has to be adopted. 25. For this purpose it is necessary to set out the Heading 98.06 (since deleted) as existed at the material time that is in June 1988. It read "parts of machinery, equipments, appliances, instruments and articles of Chapters 84, 85, 86, 89 and 90". 26. The Chapter note 1 to Chapter 98 provided that "this Chapter is to be taken to apply to all goods which satisfy the conditions prescribed therein, even though they may be covered by a more specific Heading elsewhere in this schedule". 27. In view of this Chapter note which has a overriding effect, the classification of the goods under 98.06 cannot be faulted and has not, in fact, been challenged. This view is also supported by the Tribunal decision in the Voltas case (supra). 28. As regards the plea that once the goods are classified under Chapter 84/Chapter 98 they ceased to be goods falling under Chapter 82, such a view would render the provisos to Notification 69/87 inoperative. 29. The main part of the Notification sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purpose of availing of the benefit of Notification 61/83-Cus., 62/83-Cus., dated 1-3-1987. By applying the ratio of the said Division Bench judgment (which had set aside the single Member judge decision in the same case) the tools though classifiable under Heading 98.06 do not cease to be "tools" classifiable under Chapter 82 for the purpose of Notification 69/87-Cus., dated 1-3-1987 though, the result, in this case, is that, by virtue of Sl. No. (xi) of the proviso, such tools get excluded from the benefit of the said Notification. 33. In view of the foregoing and in the light of the various admitted facts, the goods are rightly classifiable under Heading 98.06 but are not eligible for the exemption under Notification 69/87-Cus., dated 1-3-1987. 34. We respectfully differ from the view taken by the Tribunal in the case of Silicon Electricals and Others (supra) and follow the ratio of other Tribunal decision in the case of Voltas Ltd. (supra) and in the case of Bhadrachalam Paper Boards Ltd. The appeal accordingly rejected. 35. [Contra per : S.K. Bhatnagar, Vice President]. - With due respects to Hon'ble Member (Technical), my views and orders are as follows : 36. I observe t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings and sub-headings cited above as illustration. 41. The McGraw Hill Dictionary of Scientific and Technical Terms defines `Tools' as any device, instrument or machine for the performance of an operation, for example, a hammer saw, lathe, twist drill, drill press, grinder, cleaner, screw driver. 42. Even, otherwise, it is commonly recognised as per the established practice that tools are articles with a blade, working edge, or working surface which comes in direct contact with the material to be worked upon and may have cutting teeth, flutes, grooves or the like and their working parts may be made of Base Metal, Metal Carbides or Cermets, Precious or Semi-Precious stones or Abrasive material and this concept has been drawn upon and incorporated in Chapter Note 1 of Chapter 82. 43. Since tools are distinct from parts of machinery, therefore 98.06 is not attracted in the instant case. 44. (I may, however, mention `en passant' that the Chapter 98 deals with Project import; laboratory chemicals; passengers' baggage; personal importations by air or port; ship stores; And Chapter Note 1 of Chapter 98 has to be seen in the context of the areas that this Chapter is intended to cover, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hine tool under C.T.H. 8461.50, it would fall under the Heading 82.02 unless it could be shown that it was part of a tool falling under other Chapters, but the latter is nobody's case. Hence in my opinion, the goods were correctly classifiable under 82.02. 50. In the circumstances Notification 68/87 does not come into picture. 51. In the circumstances of the case, the appellants' change in stand at this stage is not permissible in view of their own statement of facts and grounds in appeal read with their own description of the goods and their use under the Heading statement of facts which have remained unchallenged by the Department. 52. The appellant has also mentioned about the assessment under C.T.H. 8202.99 as per the precedent of the Department itself. That there was such a precedent has not been denied, but I see no reason for classification under `others' when 8202.20 specifically mentions `circular saw blades' and those with working parts of steel fall under 8202.31. 53. I also observe that in the case of Collector of Customs, Bombay v. Premier Mills Stores [1992 (57) E.L.T. 197 = 1992 (40) E.C.R. 381 (Tribunal)], Tungsten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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