1997(06)LCX0105

IN THE CEGAT, COURT NO. II, NEW DELHI

S/Shri S.L. Peeran, Member (J) and Shiben K. Dhar, Member (T)

KIRLOSKAR PNEUMATIC CO. LTD.

Versus

COLLECTOR OF CUSTOMS, BOMBAY

Final Order Nos. C/1589 & 1589-A/97-B2, dated 19-6-1997 in Appeal

No. C/2880/91-B2

Advocated By : Shri T. Vishwanathan, Advocate, for the Appellant.

 Mrs. R. Pant, SDR, for the Respondent.

[Order per : S.L. Peeran, Member (J)]. - This appeal arises from order-in-appeal dated 9-9-1991 passed by Collector (Appeals), Bombay. This pertains to refund claim seeking eligibility of benefit of the Notification No. 69/87, dated 1-3-1987 in respect of goods described in the Bill of Entry as “Watercooled Condenser” under Heading 8414.90. The applicant made an alternative plea to the claim of the benefit of the Notification on the ground that the watercooled condenser is being used in the manufacture of compressor having capacity of more than 7.5 H.P. It is submitted that the item falls under Chapter Heading 8419.89 as “machinery for treatment of materials by process involving a change of temperature such as, inter alia, condensing or cooling and the correct classification of watercooled condenser would fall under Heading 8419.” It was observed by the lower authorities that it is not possible to determine their case as they had not produced any catalogue or literature pertaining to the order. The Collector (Appeals) in his impugned order has also noted their submission that the goods were imported for R & D purpose for indigenous development and testing and that they could not produce catalogue/leaflet along with the claim.

2. Ld. Advocate concedes the point that they do not have the evidence with regard to the claim for the benefit of notification in question. Further he submits that their alternative claim for change of classification should have been gone into by the lower authorities. He relies on an extract from the Text Book “Refrigeration and Air Conditioning Technology” published by William C. Whitman and William M. Johnson. On a query from the Bench, he concedes that the appellants have not produced any evidence with regard to the item in question with regard to its use and designed and as to whether it confirms to the description of heat exchanger under sub-heading 8419 as well as the description appearing in HSN. He concedes that the party has not produced any technical write up or any technical details, supported by expert opinion. The party has merely produced drawing along with the appeal memo.

3. Ld. DR points out that there was no serious challenge to the classification which they had declared under the Heading 8414.90 and they have not produced any evidence in support of their claim for change of classification.

4. We have carefully considered the submissions made by both the sides. We notice that the appellants have not substantiated their claim as noted by the ld. Collector. They have got this item manufacture for R & D purpose for indigenous development and testing and they could not produce any literature/catalogue technical write up. The same has not been produced even at this stage to substantiate their claim. The case cannot be determined on the basis of the drawing and textbook literature in the absence of technical details of the product itself. Therefore, the alternative claim for change of classification cannot be decided in this case as appellants themselves concede the point with regard to non-applicability of notification. There is no other point urged before us, hence we reject the appeal.

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Equivalent 1997 (94) ELT 631 (Tribunal)