1994(04)LCX0046

IN THE CEGAT, SPECIAL BENCH `B1’, NEW DELHI

S/Shri P.C. Jain, Member (T) and S.L. Peeran, Member (J)

COLLECTOR OF C. EXCISE, BOMBAY

Versus

NEW HEAVEN ENGG. CO. PVT. LTD.

Final Order No. E/233/94-B1, dated 18-4-1994 in Appeal No. E/3450/39-B1 with E/Cross/44/94-B1

CASE CITED

Collector v. J.K. Synthetics Ltd. — Order No. C/73/93-B2, dated 21-6-1993                        [Paras 2, 3, 4]

Advocated By : Shri B.K. Singh, SDR, for the Appellant.

 Shri R. Parthasarthy, Advocate, for the Respondent.

[Order per : S.L. Peeran, Member (J)]. - This is a revenue appeal against the order passed by the Collector (Appeals), Bombay. The assessee manufacture product “Round Rough Shaped Forged Balls” (i.e. round pieces of dimensions 12 mm to 25 mm as shown at S. No. 2 of the classification list under sub-heading 7208.00 of Central Excise Tariff Act, 1985. The Asstt. Collector approved the classification list. The revenue being aggrieved with the said classification list approved, filed an appeal under the provisions of Section 35B of Central Excises & Salt Act, 1944, on the plea that the goods would be more appropriately classifiable under Heading/sub-heading 7308.90 of CETA, 1985 attracting excise duty at 15% adv. Ld. Collector has held as follows :

“The structure of Central Excise Tariff under Heading 73.08 at the relevant time i.e. 1987 was different. Heading 72.08 provided specific entry for pieces roughly shaped by rolling or forging of iron and steel not elsewhere specified. The application clearly says that the product is Round rough shaped forged balls are manufactured from wire rods by cold forging and therefore, this entry very specifically covers round rough shaped forged balls under Heading 72.08. The residuary Heading 73.08 of the Central Excise Tariff Act, 1985 has since been aligned with harmonished commodities description and coding system only from 1988 budget onwards and therefore, when the entries were not same the explanatory note would automatically become irrelevant. In view of the discussions above Rough round shaped forged balls are rightly classifiable under Heading 72.08 for the relevant period. The departmental application has no merit and is rejected”.

The Revenue is aggrieved with this order and hence they have come in appeal.

2.  We have heard Shri B.K. Singh, ld. SDR for the Revenue and Shri R. Parthasarthy, ld. Advocate for the respondent. Ld. SDR stated that the item in question is a part of grinding machine and they would be rightly classifiable under Heading 84.56 of CTA, 1975 which corresponds to 84.74 of CETA, 1985. He submitted that the Tribunal in the case of Collector of Customs, Bombay v. J.K. Synthetics Ltd. by Final Order No. C/73/93-B2, dated 21-6-1993 dealt with the classification of the item “Grinding Steel Balls”. The Collector in that case had held that the item is an integral part of grinding mill under sub-heading 84.65 of Customs Tariff Act, 1975. The revenue had come in appeal and had claimed classification under sub-heading 73.33/40. On a careful consideration of the entire material and applying Note 2(b) of Section XVI, the Tribunal had held that the item is to be classifiable under sub-heading 84.56 of CTA, 1975. In that event of the matter, the Tribunal had dismissed the revenue’s appeal. Ld. SDR relying on this ruling submitted that the ratio of the ruling is clearly applicable to the facts of the case and therefore the present appeal of the Collector has to be allowed in the light of the Tribunal’s ruling. He submitted that the Tribunal had clearly held that the item is a part of a grinding mill and therefore, he argued that the item cannot be classified as “pieces roughly shaped by rolling or forging of iron or steel, not specified under Heading 72.08".

3. Shri R. Parthasarthy, learned Advocate appearing for the respondent fairly accepted that the item in question was a fully finished product and it was used in the grinding mill and there was no difference between the item and the item which was considered in the case of J.K. Synthetics Ltd. However, he strongly argued for dismissal of the appeal on the ground that the matter dealt with in the J.K. Synthetics Ltd. case pertained to CTA, 1975 and the same cannot be applied with a question of classification pertaining to CET Act, 1985.

4. We have carefully considered the submissions made by both the sides and perused the records. The ratio of the Tribunal’s ruling will be clearly applicable to the facts of the present case. The Tribunal has held that the grinding balls are an integral part of grinding mill and are required to be classified under sub-heading 84.56 of Customs Tariff Act, 1975 by applying Note 2(b) of Section XVI. There is no dispute in this case that the item in question is a fully finished product and that it is solely and principally used in the grinding mill. Therefore, Note 2(b) of Section XVI clearly applies to the facts of the present case and the item has to be classified along with the main item which falls under sub-heading 8474.00 which reads as hereinbelow :

The grinding machine is classified under sub-heading 8474.00 as machinery for crushing, grinding, mixing or kneading earth, stone, ores or other mineral substances, in solid (including powder or paste) form. There is no dispute with regard to the classification of grinding mill under this heading. Therefore, the parts which are used solely and principally with the particular kind of machine are required to be classified alongwith the machine as per Note 2(b) of Section XVI. In that view of the matter, the prayer of the ld. SDR for classification under this heading has to be accepted by applying the ratio of the ruling rendered in the case of M/s. J.K. Synthetics Ltd. pertaining to the “grinding steel balls” used in clinker grinding mills of cement plant. As there is no dispute that this item is used in clinker cement plant, the classification under sub-heading 8474 of Central Excise Tariff, 1985 has to be accepted. In this case the lower authorities had classified the items under sub-heading 72.08 as “Round rough shaped forged balls”. This is not an appropriate heading as the item is a fully finished item and used in the grinding mill as an integral part. The prayer for classification under sub-heading 7308.90 which is a residuary item “other” in the main Heading 73.03 which reads “other articles of iron & steel” is also not an appropriate heading, as held in the J.K. Synthetics Ltd.’s case. The Tribunal has to determine the correct classification of the product. The same can be done even at the appellate stage. In that view of the matter, we hold the items as classifiable under sub-heading 8474.00 by applying the ratio of M/s. J.K. Synthetics Ltd.’s case. The appeal is disposed of in the above terms.

Equivalent 1994 (72) ELT 307 (Tribunal)