1997(10)LCX0011

IN THE CEGAT, COURT NO. II, NEW DELHI

S/Shri G.A. Brahma Deva, Member (J) and Shiben K. Dhar, Member (T)

ARVIND MECHANICAL & ELECTRICAL ENGRS. P. LTD.

Versus

C.C.E., MUMBAI

Final Order No. E/1422/97-B, dated 3-10-1997 in Appeal No. E/4638/89-B

Advocated By : Shri Gopal Prasad, Advocate, for the Appellant.

Shri S. Nunthuk, JDR, for the Respondent.

[Order per : Shiben K. Dhar, Member (T)]. - This appeal is directed against Order-in-Appeal No. SKM-1668/89 of Collector of Central Excise (Appeals), Bombay.

2. The appellants claimed classification of impellers and fan blades under Heading 8414.99 read with exemption Notification No. 175/86, dated 1-3-1986.

3. Departmental authorities, however, held that while the impugned goods were correctly classifiable under Heading 8414.99, these were not eligible to exemption under Notification 175/86 on the ground that S. No. 4(iv) of Annexure to Notification 175/86, dated 1-3-1986 excludes refrigerating and air-conditioning appliances, machinery and parts and accessories thereof falling under Chapter 84, 85 or 90.

4. It was pleaded by the ld. Advocate that the impugned goods are parts of fans and having accepted classification under 8414.99, the department cannot go back and hold them as parts of machinery falling under Notification No. 175/86.

5. The ld. DR submits that these impugned goods have been given specific shape and in fact 10% of these goods were used in refrigerating machinery.

6. We have heard both sides. For the sake of clarity, we are extracting below Tariff Heading 84.14 :

Tariff Heading 8414.91 covers parts and accessories of sub-heading 8414.10. This sub-heading deals with gas compressors of kind used in refrigerating and air-conditioning appliance and machinery. Sub-heading 8414.99 refers to “Other”. This sub-heading is preceded by double dash. This sub-heading, therefore, is a classification of the heading preceded by a single dash which refers to “Parts and accessories”. In other words these are parts and accessories of goods other than gas compressors of a kind used in refrigerating and air-conditioning appliance and machinery. Once department itself by classifying goods under 8414.99 accepts that these goods are not parts of gas compressors of a kind used in refrigerating and air-conditioning appliances and machinery, they cannot, when they come to Notification No. 175/86, hold that these very goods are part of air-conditioning and refrigerating machinery. It was conceded by the ld. DR before us that department has not gone in appeal or filed cross-objections against this order of Collector (Appeals). This order, therefore, has acquired finality.

7. In view of this, we do not find any merit in the plea of the Revenue and therefore we set aside the impugned order and allow the appeal.

Equivalent 1997 (96) ELT 42 (Tribunal)