1996(11)LCX0028
IN THE CEGAT, COURT NO. II, NEW DELHI
S/Shri S.L. Peeran, Member (J) and Shiben K. Dhar, Member (T)
NEELAM ENTERPRISES
Versus
COLLECTOR OF CUSTOMS, BOMBAY
Final Order No. C/1350/96-B, dated 13-11-1996 in Appeal No. C/2499/89-B
Cases Quoted
K. Mohan & Co. v. Collector — 1983(12)LCX0048 Eq 1984 (015) ELT 0430 (Tribunal) [Paras 1, 3]
Nath Brothers Exim International Ltd. v. Collector
— Final Order No. 305 & 306/86-B2, dated 16-4-1986 [Paras 1, 3]
Advocated By : None, for the Appellant.
Shri K.K. Jha, SDR, for the Respondent.
[Order per : S.L. Peeran, Member (J)]. - This appeal arises from Order-in-Appeal dated 27-6-1989 passed by Collector of Customs (Appeals), Bombay. By this order ld. Collector (Appeals) has rejected the claim of the appellants for classification of the imported machines described in the Bill of Entry as cloth cutting machine with spare parts for maintenance under Chapter Heading 8451.50 along with benefit of the Notification No. 46/78-Cus. or 16/85-Cus. in terms of Sl. No. 26. The ld. Collector has held that machine for cutting of textile fabrics is classifiable under Heading 8451.50 and that would imply that the work is performed by the machine without any manual effort even though power driven, it would go out of the ambit of Heading 8451. He has further held that the machine is designed for cutting textile fabrics and it would not require manual effort also. He further held that the manual effort is signified by the presence of the handle operating as well as certain handle and it is necessary because, for the manufacture of a garment, cutting has to be done according to sophisticated design work which may not be possible without working with hand. He has further observed that it will be necessary to work with tool for cutting cloth rather than with machine for cutting fabric. [Role] of the hand is more important than cutting because it controls direction of the cutting according to the pattern. In that view of the matter, he held that the item is more appropriately classifiable under the Heading 8508.80 which reads “other tools” under the main description of the Heading 85.08 which reads “Electric Mechanical Tools” for working in hand, with self contained electric motor. The appellants contend that the issue is no longer res integra and this aspect has been looked into in the judgment more particularly in the case of K. Mohan & Co. v. C.C., Madras - 1983(12)LCX0048 Eq 1984 (015) ELT 0430 (Tribunal) and in the case of Nath Brothers Exim International Ltd. v. C.C., Bombay Final Order No. 305 & 306/86-B2, dated 16-4-1986, wherein the Tribunal has taken a categorical view that the item cannot be classified under Chapter Heading 85 of the erstwhile tariff but would appropriately be classifiable under Heading 84.40 that the item is entitled for the benefit of Notification No. 41/78-Cus., dated 1-3-1978. The machine which was under consideration was “straight knife cloth cutting machine.” It is contended by the appellants that the function of the present machine is also cutting cloth and therefore the ruling would clearly apply to the facts of the present case. The appellants have requested the case to be decided on the basis of submissions made in the appeal memorandum and the citations referred to above.
2. Ld. D.R. reiterates the departmental arguments.
3. We have carefully considered the written submissions and perused the records and perused the judgment. The lower authorities have classified the item under chapter sub-heading 8508.80 as “other tools” and have not considered the items to be classifiable as cutting machine and it has been held that the item does not fall within the ambit of the description given in chapter sub-heading 8451.50 for the reasons that the item is a tool and the item described in Chapter 85.08 pertains to tools and jigs. Therefore those types which are not of “controls of any kind” would fall under Heading 8508.80 as “other tools”. The Tribunal has gone into great detail on these aspect of the matter in the case of K. Mohan & Co. v. C.C. (supra) and in the Nath Brothers Exim International Ltd. v. C.C., Bombay, the item in question is required to be classified under erstwhile Heading 84.40.The Tariff heading in the present case is 8451.50 which reads “machine for reeling, unreeling, folding, cutting or pinking textile fabrics.” Undoubtedly, the imported machine performs the functions of the cutting textile fabrics. Therefore, we uphold the appellants contention for classification under sub-heading 8451.50 of the present tariff. The item cannot be considered as a electric mechanical tool under Chapter 85. The description under chapter sub-heading 8457.50 is specific and the item meets the requirement of said description. Hence the classification under Chapter 85.08 is erroneous and requires to be set aside.
4. As regards the claim for the benefit of Notification No. 16/85-Cus. Sl. No. 26 of the said Notification reads as “power driven cloth cutting machine and therefore they claimed the benefit of this notification. In view of the fin- dings given by the ld. Collector that the item is a cloth cutting machine and in view of the admitted position that the machine is also a power driven, the bene- fit of Notification No. 16/85-Cus. is available to them. We, therefore, set aside the impugned order and allow the appeal with consequential relief, if any.
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Equivalent 1997 (90) ELT 334 (Tribunal)