TMI Blog2002 (2) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... as lack of transport) that would not by itself make them only parts or components of cement making machinery when as per the contract entered into between the appellants the entire cement making machinery has been supplied. The Revenue has therefore, submitted that in the present case, only fabricated item i.e. parts are manufactured and cleared and not the entire machinery consisting of different parts. Since the parts are sent individually they would be classified under respective heading as per Note 2(a) of Section XVI of HSN. The Revenue has further submitted that the stand of the assessee that they have manufactured machinery and cleared in knocked down condition is not sustainable in the light of actual verification of facts of manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etely knocked down or semi-knocked down condition is available. Therefore, the assessee has to pay duty on the parts of cement making machinery and equipments at the rate of 15% ad valorem. In view of above, the Revenue has prayed for setting aside the order of the Commissioner (Appeals) and restoration of the Order-in-Original No. 345/96, dated 31-5-1996. 4. Shri G.S. Menon, the learned SDR appearing on behalf of the department reiterates the grounds of appeal filed by the Revenue. He has specifically invited our attention to Para 5.5 of the grounds of appeal in which it has been submitted that the crux of the issue is that any given point of time only parts were available for assessment and at no juncture the entire machinery in complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e manufactured goods at the time of clearances relying on the General Explanatory Note to Section XVI on page 1132 at (V) in the HSN Explanatory Notes of HSN, the AC has concluded that the item covered were correctly classifiable as parts only and not as cement making machinery itself. He therefore confirmed the demand. 4. Challenging the above findings, the appellants have stated that M/s. Cochin Cements Limited contracted them for supply of cement making machinery as a turn key project weighing about 300 MT and the supply was spread over a period of 12 to 16 months in 60 trucks as part consignments and the entire plant after assembly was commissioned on 10-9-95. They further felt that the equipments though despatched as part consignment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lakshmi Synthetic Machinery, Pollachi Division in whose case the above procedure is followed. They have also stated that there would be discrimination if similar treatment is not given in their case. 5. I find force in the submissions of the appellants. Heading 84.74 covers "Machinery for sorting, screening, separating, washing, crushing, grinding, mixing or kneading earth, stone, ores or other mineral substances, in solid, (including powder or paste) form; machinery for agglomerating, shaping or moulding solid mineral fuels, ceramic paste, unhardened cements, plastering materials or other mineral products in powder or paste form; Machines for forming foundry moulds of sand." H. 8474.10 covers all goods other than parts and H. 8474.90 cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heading No. 8419.00 does not say specifically that plants attached to earth are also taxable thereunder. 6. Though the Board's clarification as above was issued in the context of the dutiability of the item in question and the point whether the plant assembled at site and attached to the ground would become immovable property or excisable the emphasis here seems to be to examine whether if together the various parts sent by a manufacturer for assembly at site can be regarded as a complete equipment in un-assembled/disassembled condition having the essential character of the ETPs. In my view, the above logic can be applied here to the cement making machinery which also become immovable property once installed at site, since as per the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AC's order is not sustainable in law." 4. He has also invited our attention to the judgment of the Hon'ble High Court of Patna in the matter of Tata Iron and Steel Co. Ltd. v. UOI reported in 1988 (33) E.L.T. 297 (Pat.) wherein it has been held that articles cleared in knocked down condition are dutiable as complete item of machinery and not as parts. It was also held that crane fabricated and assembled at another unit of assessee against his work order but transported to assessee's plant in knocked down condition, duty is payable under item 68 of the CET. It was also held that crane qualifying as an identifiable commercial item being capable of coming to the market to be bought and sold, duty is leviable under item 68 of the CET read ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
