1994(04)LCX0035

IN THE CEGAT, SPECIAL BENCH `B2’, NEW DELHI

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

TRANSOCEAN SHIPPING AGENCY (P) LTD.

Versus

COLLECTOR OF CUS., BOMBAY

Final Order No.C/25/94-B2, dated 22-4-1994, in Appeal No. C/402/83-B2

CASE CITED

Randip Shipping & Transport Co. Pvt. Ltd. v. Collector — 1989(03)LCX0029 Eq 1989 (041) ELT 0392 (Bom.)        [Paras 3, 5]

Advocated By : Shri V. Sridharan, Advocate, for the Appellant.

 Shri B.K. Singh, SDR, for the Respondent.

[Order per : S.L. Peeran, Member (J)]. - The appellant (Importer) imported “Container handling equipment” (DD 62 CH) as lifting and handling equipment under 84.22 CTA, with additional duty under CET. The Deputy Collector identified the goods as “Fork-Lift-Trucks” and assessed them to duty under 87.07 CTA read with Item 34B of CET. Before the Collector, the importer had pleaded that the impugned goods are Container lift trucks and had no forks as lifting media and relied on ISI specifications. They had also pleaded that Dy. Collector had taken into consideration the various Section Notes like 2(a) & 3(A) of Section XVI and Section Note 2(c) of Section XVII and Rule 3(a) of Interpretation Rules. They pleaded that ISI specification 4660 : 1977 speaks about work trucks falling under 87.04/07 CTA as well lifting machinery falling under 84.22 CTA . They had pleaded that the imported goods were industrial trucks and were different from “work-trucks” and made an appeal for assessment under Heading 84.22 CTA, on the ground that the goods were provided with top lifting arrangement with slowing attachments, which are not present in the Fork-lift-trucks. The ld. Collector on a consideration of the material before him held that Heading 87.07 CTA, not only covered fork-lift trucks, but also all types of loading and unloading machinery. He also held that under the CET, the broad heading is work-truck used for short distance, for transport and handling goods. Therefore he held that there is no doubt that the imported goods were work trucks and the work trucks perform the same function as a fork-lift trucks as admitted by the importer themselves and therefore applied Section Note 3(1) of the Interpretative Rules of the Customs Tariff Act, 1975 and upheld the order of the Dy. Collector.

2. We have heard Shri V. Sridharan, ld. Advocate for the appellant and Shri B.K. Singh, ld. SDR for the Revenue.

3.  Ld. Advocate Shri V. Sridharan relied on the ruling rendered in the case of Randip Shipping & Transport Co. Pvt. Ltd. as reported in 1989 (041) ELT 392 and brought to our notice extracts from “The Illustrated Science and Invention Encyclopedia” on container handling appearing at page 653. He also referred to Compendium of Classification Opinions pertaining to Heading 84.22 on self-propelled machines and argued that the item is not a Fork-Lift-trucks and therefore, classification adopted by the department is not correct. Ld. Advocate also relied on the ISI specification 4660 : 1977 and argued that the goods cannot be marketed as fork-lift-trucks and it is designed for use as container handling equipment. The Trade also recognises the goods as container handling equipment and not as fork-lifting equipment.

4. Ld. SDR attempted to demolish the arguments of the ld. Advocate by taking us through the catalogue, literature, imported documents to show that the purchase order and the documents including bill of lading shows the item as fork-lifting trucks. He submitted that the ruling relied by the ld. Advocate referred to was `crane’ while the present item is not a crane but a truck and therefore, by the documents presented by the importer, themselves, there was no doubt that the item was a fork lift truck and the classification adopted by the revenue was not correct. In particular, he pointed out to the bill of lading dt. 17-12-1980 at Pages 34 to 36 of the paper book which described the item as fork lift truck. He also pointed out to the quotation at Pages 39 to 40 of the paper book where it had been shown as fork lift truck. He also referred to Pages 9 & 10 exhibit D2 which also referred the item as fork lift truck. He took us through the operational manual and the user manual which refers to the specific data and stated that the goods were fork lift truck and not a crane.

5. We have carefully considered the submissions made by both the sides and have perused the documents shown to us. On a careful consideration of the documents, it is clear that the imported item is a fork-lift-truck and not a crane. The bill of lading dt. 17-12-1980 at page 34 of the paper book describes the goods as “two pieces Lancer Boss Heavy Duty Fork Lift Truck Model DD62CH”. Quotation dt. 10-8-1979 at page 4 of the paper book also refers the item as “Container Lift Trucks ”. The letter of the Importer dated 22-8-1979 at Page 42 of the paper book, addressed to M/s. Lancer Boss Ltd., England is as follows :

“Kind Attn. Mr. K. Nicholl, Director of Sales.

Re : Supply/Import of Truck Lifting Container.

Many thanks for your quotation reference No. KN/JL, dt. 10-8-1979 to supply truck lifting containers of specification.

(a) DD. 62 CH 20 foot top lift capable of stacking three high

(b) DD. 62 GPCH capable of stacking three high

(c) 3500 CH side lift capable of stacking three high.

Our Management have decided no doubt to buy immediately quantity two trucks lifiting container as planned earlier, but, in view of credit facilities offered by you, we have now decided to buy one truck lifting Model DD-62 CH 20 foot with top lift spreader bar and organise to obtain supply of one each of the other two specifications on credit facility. We are now to organise the fresh import licence and Letter of Credit through our Bank. This procedure will probably take about 6-8 weeks. Consequently we can place firm order upon your company by the end of Oct, ‘79 . . . . . . . ."

We have also gone through the user Manual and operative Manual placed for consideration by the importer in respect of the imported goods. On a careful consideration of the Manual, it is very clear in Chapter 1 - General Description, Para 2 deals with “Frontlift Function” :

“The main function of a frontlift is usually fast loading and unloading or transferrance of material over short distances. When used for transporting the load is carried as close to the ground on the forks or attachment to obtain the greatest stability.”

The Specification Data Grid also describes in Col. 13 about “fork thickness, width, length standard, spacing minimum and maximum”. In Chapter 3 pertaining to operating instructions in Para 6, there is a warning which reads “never leave frontlift in neutral with engine running without applying parking brake.” On a careful reading of the entire operating and service manual it clearly indicates that the item in question is not a crane but performs the functions of a fork lift besides container handling. There is an indication that there can be adjustment made for necessary performance of various functions. In that view of the matter the ruling quoted before us pertaining to Randhip Shipping & Transport Co. Pvt. Ltd. (supra) does not apply to the facts of the case as the same deals with the crane and not the item in question. On a very careful consideration of the pleas made by the Importers, we are convinced that they have not made out any case for interference of the order passed by the lower authorities . In that view of the matter, there is no merit in the appeal and the same is rejected.

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Equivalent 1994 (72) ELT 337 (Tribunal)