1996(09)LCX0070

IN THE CEGAT, COURT NO. II, NEW DELHI

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

COLLECTOR OF CUSTOMS, BOMBAY

Versus

EIMCO ELECON (INDIA) LTD.

Final Order No. C/790/96-B, dated 9-9-1996 in Appeal No. C/3753/87-B2

Advocated By : Shri K.K. Jha, SDR, for the Appellant.

 Shri K.A. Sindhi, Advocate, for the Respondents.

[Order per : S.L. Peeran, Member (J)]. - This appeal arises from the order-in-appeal passed by the Collector (Appeals), Bombay who has classified various components of Load Haul Dumps machine, model No. 912B as classifiable under Heading 84.23. The lower authorities had rejected their claim on the ground that Load Haul Dumps are wheel vehicles used in loading, transporting, dumping of ore, rocks etc. in mines and are monoeuverable in confined working spaces with 4 wheeled drive mechanism being mounted on heavy duty pneumatic tyres. The lower authorities had also held that they are in the nature of compact utility vehicles capable of handling heavy loads effectively. Hence they were classified under Heading 87.02(1) of CTA, 1975. On appeal, the Learned Collector disagreed with the finding of the lower authorities and after examining the technical literature held that every loader has an element of transportation involved in it and for this reason it cannot be a transport vehicle. The loading machine with built-in arrangement for lifting or loading, can never be considered as Dumper. The Learned Collector has drawn support by specific inclusion of self propelled showel loader under Heading 84.22 appearing at page 1234 of CCCN. These machines are described as wheel or crawler machine with front mounted bucket which picks up material through motion of machine, transport and discharge it. Therefore, he has held that the item fits squarely into the above definition of self propelled showel loader. In view of this he has held that the item does not make it a transport vehicle falling under Item 87.02 of CTA. Therefore, he further accepted the appellant’s contention that the item falls under 84.22 of CTA, 1975.

2. The learned Consultant appearing for the importer submitted that in their earlier import the Collector had accepted their submission and the appeal filed by the Collector before the Tribunal was dismissed as not pressed, in view of the Board’s suggestion that the item “Load Haul Dumpers” falls under Heading 84.22. The learned Consultant submitted that the party had contacted the Collector who had informed them that they had sent instructions from the CDR to withdraw this appeal.

3. The learned DR submits that he had made a reference to the Collector on this point, when this matter was mentioned on the last date of hearing. He submits that he has no instructions as on date.

4. We have considered the submissions made by both the sides. We find from the Final Order No. 2245/87-B2 dated 16-12-1996 that this matter had earlier come up before the Tribunal and the Revenue after consulting DGTD and referring to CCCN had withdrawn the appeal filed on that occasion and accepted the classification under Heading 84.22. Even on merits, we find that such a vehicle cannot be considered as normal 4 wheel vehicles as is commonly understood as described under Heading 87.02. Heading 87.02 refers to motor vehicle for the transport of persons, goods or materials. From the appeal memorandum filed by the Collector itself it is seen that the Load Haul Dumps are used in transporting and dumping of ore, rocks etc. in mines and are manoeuverable in confined working spaces. Considering the type of functions this vehicle is specifically designed to perform it can only find this place under Heading 84.22 as lifting, handling, loading or unloading machinery. In view of this and considering also the fact that the Revenue itself did not press the earlier appeal, it was dismissed as not pressed. We reject the Revenue appeal and uphold the impugned order.

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Equivalent 1996 (88) ELT 378 (Tribunal)