1996(04)LCX0137

IN THE CEGAT, COURT NO. II, NEW DELHI

Shri S.K. Bhatnagar, Vice President and Ms. Archana Wadhwa, Member (J)

LARSEN & TOUBRO LIMITED

Versus

COLLECTOR OF CUSTOMS, BOMBAY

Final Order No. C/116/96-B, dated 9-4-1996 in Appeal No. C/1595/87-B

Advocated By : Shri Y. Subramanian, Executive (Import), for the Appellant.

Shri Mohd. Ali, JDR, for the Respondent.

[Order per : S.K. Bhatnagar, Vice President ]. - This is an appeal filed against the order-in-appeal passed by Collector of Customs (Appeals), Bombay dated 23-2-1987.

2. Ld. Representative for the appellants stated that they had imported hydraulic cylinder and the same was assessed under heading 84.59 (1). Their appeal to classify them under 84.23 was also rejected by the Collector.

3. It was however their submission that this cylinder is a part of 300 CK excavator and does not have any independent function and is not inter-changeable with other Machine but made specifically for the 300 CK excavator. As per Section Note 2(b) to Section XVI parts if suitable for use solely or principally with a particular kind of machine are to be classified with the machine of that kind. Earth Moving Machinery is classifiable under heading 84.23; and hence their request.

4. In support of their contention that it is a specific part of excavator, it was their submission that this cylinder has a specific part number which itself is a proof that the item is used solely with 300 CK excavator.

5. At the original stage they had submitted a drawing, but the Asstt. Collector had mentioned that the hydraulic equipment forming part of earth moving machinery, is assessable under 84.59(1) irrespective of use anywhere and it was their contention that he had erred in this regard.

6. The Collector (Appeals) had also similarly erred as according to him the drawing did not show exactly where the item was to be used and had an individual function.

7. It was their contention that the drawing produced before the original authority shows the Part No. U2546785.

8. This number is also mentioned in the invoice and the catalogue now produced.

9. In response to queries from the bench, he stated that they had requested the Custom House to supply them the copies of the original and duplicate bills of entry and had been informed that the same had been destroyed. It was also their submission that their clearing agent had initially wrongly indicated the heading as 87.01/04 but the goods had been assessed under 84.59(1). They have also not been able to produce the order indent acceptance but would draw attention to the original invoice dated 8-7-1983 which shows the number as U2546785. The catalogue now produced by them gives general description of the hydraulic excavator and the figure given therein show the position and placement of the hydraulic cylinder in figure 1 and the specific part number is mentioned in the figures on the next page which reproduces the drawing of the same, and the details are shown in the subsequent figures. The technical write-up also shows that this is a hydraulic cylinder fitted on the Stick attachment of the hydraulic excavator and it facilitates the movement of the attachment to enable excavation as required. This type of attachment is not required for the purposes of tractors but is only utilised in the excavators. It was therefore, his submission that in view of the catalogue now produced, their request may be accepted.

10. Ld. DR states that the appellants have not produced the catalogue before the lower authorities i.e. neither at the A.C. stage nor at the stage of Collector (Appeals) and the drawings which were produced before them was not found to be sufficient by them for establishing the correlation.

11. In view of the catalogue now produced and the description of the machine and the cylinder and the fact that the part number given therein is as mentioned in the invoice, he has no objection if the matter is remanded for de novo consideration.

12. We have considered the above submissions. We observe that there is a lot of force in the submissions made by the ld. Representative of the appellant.

13. The invoice dated 8-7-1983 produced before us shows the Part Number as U 25 467-85 and this has been indicated in the catalogue now produced as number of the hydraulic cylinder which is shown as a part of the hydraulic excavator in the figures shown in the catalogue. The catalogue (sic) gives the general description of the hydraulic excavator and the details of the cylinder and the technical write-up filed along with it shows that hydraulic cylinder is fitted on the stick attachment and facilitates the movement of this attachment to enable excavation as required.

14. In view of the catalogue and write-up now produced along with the drawing and the invoice, and the correlation established between the part number shown in the invoice and the part number shown in the catalogue and other technical particulars indicated, we are satisfied that the item imported is a part meant for use along with the aforesaid excavator as submitted by the appellants and therefore, in terms of Section Note 2(b) of Section XVI, it was required to be classified under the same heading as that of excavator namely Heading No. 84.23. In view of this position, there is no need to remand the matter for de novo consideration. The appeal is accepted with consequential relief, if any due to the appellants.

Equivalent 1997 (93) ELT 234 (Tribunal)