1997(04)LCX0017

IN THE CEGAT, COURT NO. II, NEW DELHI

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

BHARAT VIJAY MILLS LTD.

Versus

COLLECTOR OF CUSTOMS, BOMBAY

Misc. Order No. M-84/97-B2 and Final Order No. C/1220/97-B2, dated 21-4-1997 in C/Misc/875/96 in Appeal No. 2276/90-B2

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

Shri K.K. Jha, SDR, for the Respondent.

[Order per : Shiben K. Dhar, Member (T)]. - This appeal is directed against Order-in-Appeal No. 468/90, dated 12-3-1990 of Collector of Customs (Appeals). The appellants imported a consignment of electric Hand welding tool. The goods were described in the invoice as “Electric Hand Welding Tool, Leister Ghibli 220V No. IP4". The appellants claimed assessment of the impugned goods under CTH 8515.80 read with Notification No. 59/87-Cus., dated 1-3-1987 on the ground that the impugned goods are in the nature of capital goods required for welding of plastics and these are specifically covered under CTH 8515.

2. Arguing for the appellants, ld. Advocate submits that the impugned goods are specifically meant for welding of plastic. The goods may be capable of performing other functions that but by itself would not mean that the impugned goods basically are not for plastic goods. He ruled out classification under Heading 85.08 as tools and under Heading 8515.00 as welding machine. He also drew attention to HSN Notes.

3. Ld. DR arguing for the Revenue submits that this is not just a plastic welding machine but basically a hand tool meant for working in hand as electro-mechanical tool and therefore Heading 85.08 is specific to the goods.

4. We have heard both sides. For the sake of clarify we are extracting below the two entries :

The catalogue placed at Annexure `A’ in the appeal papers makes for interesting reading. The catalogue at the outer page itself refers to impugned goods as “double insulated electronically adjustable hot air blower for a multitude of home, hobby, sport and workshop applications. The catalogue indicates the technical details as under :

“Available for 220V - 1860 W, 50/60 Hz or for 120V - 1560W, 50/60 Hz. With the stepped switch for the motor, the air regulating slide and the electronic regulator the volume of air is adjustable between 3 and 300 1/min. and the air temperature infinitely variable from 20^o to 600^oC.

This wide range of adjustment facilitates a great variety of applications.

On the red potentiometer knob the temperature scale is shown with indications up to 600^oC (e.g. line 3 = 300oC, line 3, 5 = 350oX, line 4, 8 = 480oC). After the required temperature has been set, it is reached in about 3 minutes and then remains constant, independent of which nozzle is fitted, independent of voltage fluctuations and independent of the chosen volume of air. All nozzles, reflectors and welding mirrors can be fitted in seconds, without change of heating element. Weight incl. 3 m cable : 950g."

It further adds that Karl Leister leads the world in producing such a specialized tool. 30 years of experience in the manufacture of hot air tools made it possible to produce such a top quality tool with so many various applications. (emphasis added). It refers to various functions as “Butt welding”, “Speed welding”, “For the car enthusiast”, “if there is a dent in the bodywork not only can you fill it in by tinning but you can also pull it out with the soldered on tinning stick”.

For the housewife again the catalogue indicates that :

“In about 1-3 minutes you can grill an Entrecote steak, pork cervelat sausages or a slice continental meat loaf until on and brown. You can toast bread or heat up a pizza.

With the 65 mm hot air jet soules, snails, sauces, soups, be ten egg white and confections can have the surface crisped a golden brown crust.

Recommended accessons sieve reflector No. 5IP on price list."

For the Younger generation in schools and at home it indicates that :

“In schools, recreation centre and hobby workshops an adjustable hot air jet is often is dispensable. For instance, it drying in screen printing and modelling figures at low temperature. Or at highest temperature for loosening glued veneand for heating up epoxy respowder and polysyrolgranule when making costume jewellery.

Recommended accessons Nos. 22C, 28, 29, 5IP and 6 on price list".

For the householder it indicates that :

“Whether you are making a greenhouse or an environmental chamber (biotope) or want to repair the roof quickly, economical waterproof covers can be made quickly by melt welding polyethylene foil with use of welding rod”.

These are various functions the tools is capable of performing.

From the catalogue itself it will be seen that finally what is imported is a tool and tool capable of multi farious functions though welding is one of the function. Ld. Advocate placed considerable emphasis on Section Note 3 of Section XVI to press his claim for classification under 85.15. We however, fail to understand the relevance of Section Note to the impugned goods, as the basic character of the impugned goods comes only from it being a tool.

Merely because it is used with a particular nozzle for welding purposes would not make it a welding machine in terms of CTH 8515. On the other hand CTH 85.08 which requires the impugned goods to be (00a) electro-mechanical tools, (b) for working in hand, (c) with self contained electric motor, is more specific to the impugned goods. The impugned goods basically are electro-mechanical tools, they are for working in hand, and they are with self-contained electric motor. It is this character which enable them to perform various functions including that of welding.

5. Considering the various functions which the impugned goods perform and the basic character of the impugned goods we hold that CTH 85.08 applies with much greater specificity to the impugned goods.

6. In view of this, we reject the appeal and uphold the impugned order.

Equivalent 1997 (96) ELT 709 (Tribunal)