1997(05)LCX0174

 IN THE CEGAT, COURT NO. II, NEW DELHI

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

G.T.N. TEXTILES LTD.

Versus

COLLECTOR OF CUSTOMS, COCHIN

Final Order No. C/1033/97-B2, dated 16-5-1997 in Appeal No. C/2049/91-B2

Advocated By : Shri J.L. Bhandhari, Manager, for the Appellant.

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

[Order per : Shiben K. Dhar, Member (T)]. - This appeal is directed against the Order dated 6-3-1991 of Collector of Customs (Appeals), Kerala.

2. The appellants imported “Rubber Roller cleaning machine”. The primary function of this machine is to give periodical surface finish treatment of the rubber rollers used in the spinning mill. This machine was assessed under CTH 8479.89 read with Notification No. 162/89. The appellants subsequent to clearance filed a refund claim claiming the machine to be assessable under Heading No. 8448.00. This claim was rejected by the Assistant Collector. Collector (Appeals) upheld the order of the Assistant Collector and rejected the claim for assessment under Heading 8448.00. He also rejected the alternate plea for classification under Heading 8477.80. Hence this appeal.

2. Arguing for the appellants, the learned Manager for the appellant’s company submits that rubber rollers are used in the textile mill to ensure smoothness of yarn. The rubber rollers in order to ensure their smoothness have to be treated periodically through application of chemicals. The impugned machine therefore, is periodically used to give chemical treatment to rubber rollers. Heading 8448 covers auxiliary machinery used in machines of Heading 8444, 8445, 8446 and 8447. Since this machine is directly connected with machines for production of yarn, it can be called as a machine auxiliary to the machines of Headings 8444 to 8447.

3. Arguing for the Revenue, the learned DR submits that to be an auxiliary machine it has to work inconjunction with the machine used for production of textile material. This machine works independently for cleaning a rubber roller and in that context it can only be considered as machine having an individual function. Heading 8477 is also ruled out since it does not produce any commodity by working base material like rubber. In the result, therefore, since other type of headings are ruled out, Heading 8479.89 is the only correct classification which also being the last tariff heading also derives support from the Rule 3(c) of Rules of Interpretation.

4. We have heard both sides.

5. For the sake of clarity, we are reproducing the two competing tariff entries :

“84.48  Auxiliary machinery for use with machines of Heading No. 84.44, 84.45, 84.46 or 84.47 (for example, dobbies, jacquards, automatic stop motions, shuttle changing mechanisms); parts and accessories suitable for use solely or principally with the machines of this heading or of Heading No. 84.44, 84.45, 84.46 or 84.47 (for example, spindles and spindle flyers, card clothing, combs, extruding nipples, shuttles, healds and heald-frames, hosiery needles).”

“84.79 Machines and mechanical appliances having individual functions, not specified or included elsewhere in this Chapter.”

Heading 84.48 covers auxiliary machinery for use with machines of Heading No. 84.44, 84.45, 84.46 or 84.47. The heading itself furnishes illustrations of such auxiliary machines by indicating that dobbies, jacquards, automatic stop motions, shuttle changing mechanisms etc. are classifiable under this heading. HSN at Page 1250 indicates that Heading 84.48 covers all auxiliary machines and apparatus which exercise, either separately or concurrently, a function complementary to those of the machines of Heading 84.44, 84.45, 84.46 or 84.47 (in particular spinning, weaving, knitting or embroidery machines). These auxiliary machines may either extend the possibilities of the main machines (as in the case of dobbies and jacquards), or may perform mechanically a particular job necessary for the proper working of the main machine (as is the case with warp stop motions, weft stop motions, warp knotting machines), HSN notes also by way of illustration indicate the type of machines which are covered by the expression `Auxiliary Machinery’. These machines are automatic devices which remove fully wound reels and replace them with empty ones, and mobile appliances for setting up rows of empty reels. Dobbies and Jacquards, used to adapt a loom for producing weaves more complicated than it could otherwise execute. Jacquards card punching machines are leno attachments which, during weaving, cross over certain of the warp threads to form loops through which weft threads pass. They are used in the manufacture of gauze and other leno fabrics. The examples and illustrations furnished by HSN notes make it clear that the machine has to function inconjunction with other textile machinery in production of yarn. The impugned machine only gives chemical treatment to rubber rollers for a smooth finish. It is true that rubber roller in turn is used for giving smooth finish to the yarn but that by itself would not make a machine used for giving chemical treatment of rubber roller as an auxiliary machine to the types of machines indicated under Headings 84.44 to 84.47.

6. In regard to alternate plea for the classification under Heading 84.77, which was introduced at the appellate stage, we have to look at the exact scope of CTH 84.77. The heading relates to machinery for working rubber or plastics or for the manufacture of products from these materials, not specifieds or included elsewhere in this Chapter. It indicates that machines like injection-moulding machines, extruders, blow moulding machings, vacuum moulding machines etc. A plain reading of this heading indicate that a machine used merely for cleaning of rubber roller cannot be considered as a machinery for working rubber. Now, we go to CTH 8479.89. The illustrations furnished in HSN notes under heading miscellaneous machinery at page 1317 itself would indicate that the impugned goods would answer to description of goods included under Heading 84.79 under sub-heading `other’ against 8479.89. HSN notes for example include the following type of machinery under this heading.

(8) Machines for cleaning off recovering gelatin inking rollers.

(9) Machines for coating photosensitive emulsions on to a backing.

(12) Machines for the maintenance of pipelines or other non-flexible pipes.

(15) Machines for washing, scouring or removing dust from bed feathers.

(17) Machines for applying abrasive to any backing (fabrics, paper, etc.).

(27) Automatic shoe-brushing machines.

(28) Machines for waxing paper cups and containers, etc. by immersion.

(30) Industrial floor polishers.

7. HSN notes indicate that following devices are to be treated as having “individual functions”.

(A) Mechanical devices, with or without motors or other driving force, whose function can be performed distinctly from and independently of any other machines or appliance.

(B) Mechanical devices which cannot perform their function unless they are mounted on another machine or appliance, or are incorporated in a more complex entity, provided that this function :

(i) is distinct from that which is performed by the machine or appliance whereon they are to be mounted, or by the entity wherein they are to be incorporated, and

(ii) does not play an integral and inseparable part in the operation of such machines, appliance or entity.

8. Looking at the manner in which the machine functions, there can be no manner of doubt that machine is one with functions not covered more specifically under any other heading in the Tariff and therefore in the circumstance more appropriate classification of impugned goods even without taking recourse to the Rule 3(c) of the Rules of Interpretation, would be 8479.89. In the result, for the reasons mentioned therein before, we reject the appeal and set aside the impugned order.

_______

Equivalent 1998 (99) ELT 281 (Tribunal)

Equivalent 1997 (021) RLT 0020 (CEGAT)