1996(12)LCX0082

IN THE CEGAT, SOUTH ZONAL BENCH, MADRAS

S/Shri V.P. Gulati, Vice President and T.P. Nambiar, Member (J)

COMMISSIONER OF CUSTOMS, MADRAS

Versus

CHOWDARY ENTERPRISES

Order No. 2611/96, dated 10-12-1996 in Appeal No. C/R-293/96 Md

Advocated By : Shri R. Victor Thiyagaraj, SDR, for the Appellant.

Shri M.S. Kumaraswamy, Consultant, for the Respondents.

[Order per : V.P. Gulati, Vice President]. - The issue in the appeal relates to the classification of goods which have been described as `Nipples’ and which are required to be fitted in an arrangement for feeding water to the poultry birds.

2. The Learned Lower Authority after examining the arrangement in which these are to be fitted has held that these nipples are parts of the drip system for providing drinking water to poultry and broilers and therefore have to be considered as parts of poultry-keeping machinery falling under Heading 8436.99. The benefit of Notification 49/95 has also been extended in respect of the goods. The revenue has sought for the classification of these goods under Tariff Heading 73.07.

3. The Learned SDR, Shri R. Victor Thiyagaraj has pleaded that the Tariff Heading 73.07 is comprehensive enough to cover within its ambit nipples which have been imported. In this connection, he has referred us to the description of the Tariff Heading 73.07 which reads as tubes or pipe fittings (for example Coupling, Elbows and Sleeves), of Iron or steel to support his plea. He has relied upon the explanatory notes in the HSN and has pointed out that under the HSN under this tariff heading nipples have been specifically mentioned.

He has pleaded therefore the goods in question are assessable under tariff heading 73.07. He has also reiterated the grounds of appeal. He has pleaded that parts of general use in terms of Section XV are excluded from the purview of assessment under this section which includes Chapter 84 also.

He has urged that the Learned Lower Appellate Authority has not taken congnizance of the scope of Note 2 of Section XV and Note 2 of Section XVI which is also to the same effect. In this connection we had asked him to show as to how the nipples in question which have been imported and the sample of nipple which have been shown to us could be taken to be of the type which are covered under tariff heading 73.07 taking into consideration, the scope of the tariff heading as set out under the tariff. He pointed out that these nipples comprise of a mettalic tapered cylinderical parts which are encased in a plastic jacket with threading on to it. This is fitted into the pipes which supply the water and the water drips through these nipples into the pans from which the poultry birds drink the water.

4. The Learned Consultant for the appellant Shri M.S. Kumaraswamy has pleaded that the scope of the tariff heading 73.07 as set out in the HSN as well as under the Customs tariff covers only such of those items which are in the nature of the tubes or pipe fittings or are as per the examples given in the tariff, namely Couplings, elbows and sleeves etc.

5. He has pleaded that the nipples as set out in the HSN have to be such as would answer to the description of pipe fittings (i.e.) these are of nature which will join the two pipes or will become an extension of pipe by fitment on to the pipe. He has pleaded that the item in question are fitted into a hole in the pipe which is carrying the water and the nipple provides outlet for the water at intervals. The manner in which it is used cannot be taken to be the nipples of the type mentioned in the HSN and which have to be of a nature as are used as pipe fittings.

6. We have considered the pleas made by both the sides. We observe that in the McGraw-Hill Dictionary of Scientific and Technical Term, II edition, pipe fitting is defined as under :-

`A piece, such as couplings, unions, nipples tees and elbows for connecting lengths of pipes’.

Nipples is also mentioned as pipe fitting. The term nipples defined as under :-

`The conical projection in the center of the mamma, containing the outlets of the milk ducts. A short piece of tubing, usually with an internal or external thread at each end, used to couple pipes’.

After going through this definition, we have asked the Learned SDR, whether the nipples in question, as imported could be taken to be answering to the description both as a pipe fitting or as a nipple. He had no specific reply to give in this regard. Looking at this item which has been imported, we observe while the item has been described as a, nipple. If it does not appear to be in the nature of the pipe fitting as such as set out in the definition of pipe fitting as given in the Technical Dictionary or illustrated by examples in the tariff under Heading 73.07. The item in question is screwed into a hole in the pipe which is carrying the water over a length and these nipples are fixed into the pipe at different intervals, to facilitate the dripping of the water in small quantition into the pan from which the birds drink the water.

7. The Learned Lower Authority, we observe has held after looking into the catalogue and the use of the item, that these cannot be considered to be a item falling under 73.07. As it is the item comprise of three parts, one thick metallic cylinderical portion on the head side and one thin metallic cylinderical part at the bottom and both are encased in a plastic cover carrying a thread. As it is the portions, that is fixed into the pipe is the plastic portion. We in the circumstances, in view of the above discussions, hold that there is no force in the plea of the revenue and therefore we dismissed the appeal.

Equivalent 1997 (93) ELT 258 (Tribunal)

Equivalent 1997 (020) RLT 0583 (CEGAT-SZB)