1997(02)LCX0172

IN THE CEGAT, COURT NO. II, NEW DELHI

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

LARSEN & TOUBRO LIMITED

Versus

COLLECTOR OF CUSTOMS, BOMBAY

Final Order No. C/506/97-B2, dated 28-2-1997 in Appeal No. C/1020/89-B2

Advocated By : Shri Y. Subramanian, Authorised Representative, for the Appellants.

 Shri S.N. Ojha, JDR, for the Respondents.

[Order per : Shiben K. Dhar, Member (T)]. - The impugned goods were claimed by the appellants to be `Weld Trainer’ used for training their staff. The appellants claimed classification under the then CTH of Customs Tariff Act, 1975 under 90.21 as `apparatus designed for demonstration purpose’. This claim was rejected by the customs authorities who assessed the goods under CTH 85.18/27(1).

2. Arguing for the appellants, the Learned Representative of the appellants’ company submits that the apparatus is solely used for demonstration purpose in their factory and not used as a welding machine. Basically it is used as a simulator.

3. The Learned DR draws out attention to the expression used in CTH 90.21 and submits that the impugned goods would merit classification under this heading only if they are unsuitable for other use. In other words, they must be solely used for demonstration purpose. Collector (Appeals) has therefore rightly inferred that use of machine for the purpose of other than training cannot be ruled out.

4. We have heard both sides.

5. The literature of weld trainer placed at page 8 to 14 of the appeal papers indicates that LENCO, INC. Weld-Trainer is the most sophisticated and complete arc welding training aid known to exist in the industry today. The literature goes to add :

“The Lenco Weld-Trainer can be used for many training purposes, including; qualifying aptitude of prospective trainees, a part of a complete training program to aid in developing individual skills, periodic performance testing of students, qualifying experienced welders for employment and or close tolerance demanding jobs, improving a deficient skill and more. Because of the wide variety of applications, it becomes impossible for us to suggest specific settings for the exercise you will be doing. By experimenting with the Weld-Trainer yourself, in a very short time you will be in the best position to program for your particular requirements. A sample form is included for your evaluation that has been found to be most complete for charting a subject’s progress; however, you may wish to modify this to your needs.

One of the main features of the Lenco Weld-Trainer is its ability to analyze the complex skill of welding by examining the three basic skills separately. The three skills developed with the Weld-Trainer are : Maintaining Proper Rod Angle, Maintaining Good Arc and Tracking or Staying in the Puddle. For example, a subject may have developed a good zig-zag or weave pattern in actual welding practice, but is unable to maintain a consistent arc length. Examination of this subject’s actual weld would show a bad appearance, but the specific cause could be difficult to determine. With the Weld-Trainer, you can easily determine with a programmed exercise, exactly the cause of the subject’s poor weld use it to develop his skill in that area.

Another key feature is augmented feedback. In cases where the subject is developing his welding skills through the use of the Weld-Trainer, the hood speaker will provide him with audible indicators during the welding practice. When the exercise starts, he will hear a simulated welding sound (hiss) if he maintains proper electrode angle, arc length and remains in the simulated puddle. As an error is registered in any of these areas, the subject is immediately notified of that error and able to correct. When augmented feedback feature is not required such as during evaluation exercises, it can be disabled at the control console during programming."

6. The Collector (Appeals) has referred to following para of the catalogue in rejecting the claim:

“In this section, we have outlined the general features of your lenco weldTrainer. In specific applications, you will no doubt find features attractive to you as well. Features such as savings in clean-up and set-up time, negligible power consumption, cost savings over usage of consumable electrodes and practice materials.”

6.1. After referring to this pare, the Collector (Appeals) records that no doubt the equipment is used for imparting welding training. From the features indicated in the catalogue, “it is an admitted position that the usage of this equipment for any other specific application i.e. for actual welding according to the requirement of the user is not restricted”. On going through the catalogue, we do not find any basis for drawing such inference. From the write-up placed at page 5 of the appeal papers, we find that Weld-Trainer is an instrument solely designed to demonstrate welding to the newly recruited Welder Trainee. The instrument is basically a welding simulator which can only be used to educate Trainee to achieve skills in welding operations. It consists of a mock electrode holder, dummy weld plate and control panel/display unit. The unit simulates all welding conditions like spark, welding arc, welding sound etc. which helps the Trainees to get familiar with welding operation without actually doing the welding.

6.2. The appellants have also submitted a certificate dated 02-01-1997 from Shri P D Chhajer, Chartered Engineer which certifies that Weld Trainer machine purchased from M/s. LENCO Inc. USA as per invoice No. 77592 dated 04-04-1985 is used for training welders. The Chartered Engineer has further certified that :

“This machine is kept in Welding Training Center, LARSEN & TOUBRO, Powai and used exclusively to educate Weld trainers regularly and it cannot be used as a full fledged welding machine.”

6.3. In the face of this evidence placed on record, it is difficult to agree with the authorities below that it can be used for other purpose also, particularly when no evidence whatever has been led by the Revenue in rebuttal.

7. The Learned DR during the arguments placed considered emphasis on the expression `unsuitable for other uses’ in 90.21 and submitted that other use cannot be ruled out. For the sake of clearity, we extract below CTH 90.21 :

“90.21 Instruments, apparatus or models, designed solely for demonstrational purposes (for example, in education or exhibition), unsuitable for other uses.”

7.2. It is true that the apparatus is claimed to be for demonstrational purposes only and unsuitable for other uses. That it could be used for other purposes, as held by the Collector (Appeals), is something which has to be proved by the Revenue. No evidence as observed earlier has been led by the Revenue in support of their contention. We have to remember that we are here dealing with classification matter and, for disputing the claim of the appellants, the onus is squarely on the Revenue. No such evidence has been placed before us to disprove the claim of the appellants. On the other hand, the appellants have placed opinion of experts in the field as also the literature from the supplier himself which in clear terms point to the impugned goods as being merely simulators which are used for training purposes only. In view of this, we set aside the impugned order and allow the appeal.

Equivalent 1997 (92) ELT 529 (Tribunal)

Equivalent 1997 (019) RLT 0736 (CEGAT -8B)