1999(11)LCX0221

IN THE CEGAT, SOUTH ZONAL BENCH, CHENNAI [SITTING AT BANGALORE]

Justice K. Sreedharan, President and Shri V.K. Ashtana, Member (T)

BUHLER (INDIA) LTD.

Versus

COMMISSIONER OF C. EX., BANGALORE

Final Order No. 2925/99, dated 17-11-1999 in Appeal No. C/601/94-B2

Advocated By : Smt. Rukmani Menon, Advocate, for the Appellant.

Shri S. Kannan, DR, for the Respondent.

[Order per : V.K. Ashtana, Member (T)]. - In this appeal against Order-in-Appeal No. 129/94, dated 20-6-1994, appellants have contended that the Electric Vibrators which have been imported by them were classified under 8543.80, but should be correctly classified under Heading 8479.89 of the Customs Tariff and correspondingly Heading 8479 of the Central Excise Tariff for the purposes of CVD.

2.  Ms. Rukmani Menon, learned Advocate for the appellant submits that they now propose before us a change in the claimed classification of this product from the Customs Tariff Heading 8501 as indicated in their Appeal Memo to a more appropriate heading as indicated above.

She submits that as per the rates of duty in force during the relevant period i.e. 1994-95, the rate of duty was 65% adv. Customs duty and 10% CVD under the Heading 8479 as indicated above. She submits that this proposed revised classification claimed is in view of the fact that the product is basically a vibrating machine and the electric motor merely plays the secondary role of providing motive power. She also submits that the explanatory notes under the HSN are of conclusive help in this matter and refers to Page 1315 under Section XVI of the said Notes wherein under the main notes for machinery of general use in sub-clause (v) the Vibrators have been included under Heading 8479 with the following description :

“Vibrator motor consisting of an electric motor with eccentric discs fitted to the protruding ends of the shaft, generating radial vibrations which are transmitted to the apparatus or appliance (chutes, bins, hoppers, conveyors, compacting appliance, etc.) to which the vibrator motor is fixed”.

She also submits that this classification under 8479 is further reinforced by the notes in Page 1335 under Chapter 85 wherein under the notes dealing with electric generators, in sub-clause (b), it has been noted that the Heading 85.01 excludes Vibrator Motors and Electro Magnetic Vibrators of Heading 84.79.

3.  Shri S. Kannan, learned DR reiterates the department’s view in the orders impugned.

4.  We have carefully considered the rival submissions and records and are of the considered opinion that the prime function of this imported vibrator is to produce vibrations of suitable intensity and amplitude. The electric motor merely acts as a prime mover.

Therefore, the product cannot be regarded as an electric motor only. The machines of general purpose use are covered under Heading 8479 both in the Customs Tariff as well as in the Central Excise Tariff. We also take note of the notes available for our guidance in the HSN as submitted by the Learned Counsel.

5.  On a careful consideration of the above, we are therefore of the considered opinion that the item imported would be classifiable under Heading 8479.89 under the Customs Tariff Act and under Heading 8479 under the Central Excise Tariff Act, as the latter had not specified any further sub-headings under this main heading at the six digit level during the relevant period i.e. 1994-95. We therefore set aside the order impugned and allow the appeal in the above terms with consequential relief as per law.

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Equivalent 2000 (116) ELT 593 (Tribunal)

Equivalent 2000 (039) RLT 0103