1997(10)LCX0145

IN THE CEGAT, COURT NO. II, NEW DELHI

S/Shri G.A. Brahma Deva, Member (J) and J.H. Joglekar, Member (T)

COLLECTOR OF CUSTOMS, BOMBAY

Versus

PAHARIA MARBLES LTD.

Final Order No. C/2124/97-B2, dated 9-10-1997 in Appeal No. C/653/86-B2

Cases Quoted

Collector v. Manjushree Minerals Ltd. — 1992(10)LCX0045 Eq 1993 (064) ELT 0085 (Tribunal) — Distinguished [Paras 3, 6]

Paharia Marbles Industries v. Collector — 1997(02)LCX0111 Eq 1997 (092) ELT 0645 (Tribunal) — Distinguished [Paras 3, 6]

Advocated By : Shri R.S. Sangia, JDR, for the Appellant.

Shri N.C. Sogani, Advocate, for the Respondent.

[Order per : J.H. Joglekar, Member (T)]. - In this appeal, the Revenue is contesting the classification, under the Customs Tariff, of the goods described as “plates” for use in marble cutting machine of size 3950 x 180 x 3 mm. The Assistant Collector found the goods to be plain Gangsaw blades segments. He determined the classification under Heading 82.01/04 rejecting the claim of the importers that the goods were classifiable under 84.45/48 as part of the machine tools for working metals. In the impugned order, the Collector (Appeals) has held that the goods were more appropriately classifiable under Heading 82.06 which attracted same rate of duty as for goods under Heading 84.45/48. The claim in the appeal memorandum is that the finding of the Assistant Collector be restored.

2. We have heard Shri R.S. Sangia, ld. DR for the Revenue. The respondents were represented by Shri N.C. Sogani, ld. Advocate.

3. Shri Sogani, ld. Advocate referred to a judgment of the Tribunal in the case of Collector of Customs v. Manjushree Minerals Ltd. reported in 1992(10)LCX0045 Eq 1993 (064) ELT 0085 (Tribunal) in which steel strips for stone cutting were held to be classifiable under Heading 82.01/04. In doing so, the Tribunal observed that the heading was a specific one whereas the Heading 84.45/48 was a general heading. In arriving at the conclusion, the Tribunal also examined the leaflets and the invoices. In 2nd cited case [Order No. C/349/97-B2, dated 18-2-1997 = 1997(02)LCX0111 Eq 1997 (092) ELT 0645 (Tribunal)], the Tribunal had classified saw blades, brazed with segments under Heading 82.01/04. Ld. Advocate suggested that the judgments in both the cases were distinguishable. He stated that only after the steel strips are studied with segments, which are instrumental in cutting marble, attract classification under Heading 82.01/04. In the present case, he stated that the blades were without any segment. Shri Sogani submits that the claim made before the Hon’ble Tribunal in this case was that the blades were parts of machine tools. It was his claim that the subject heading also includes tool holders. It was his claim that since the blade holders are without the segments, it qualifies as a tool holding. It is his claim that this aspect was not presented before the Tribunal in the Manjushree Mineral case (supra). Referring to the Explanatory Note to Heading 82.02 of the BTN, he stressed that it covers base metal teeth and toothed segments for insertion in saw blades, but does not cover the blades on which these segments are added.

4. Shri Sangia, ld. DR urged that the classification under 82.06 was wrong. The saw blades for use for marble cutting machine remained saw blades and were correctly covered under 82.02 of the CCN and 8201/04 of the ICT. He further stated that the Assistant Collector had classified the goods only after physical inspection thereof and, therefore, his view should prevail. He also sought to distinguish the facts of the case decided by the predecessor of the Collector, who passed the impugned order, but in reply to our query, he could not show the order passed by the predecessor of the Collector.

5. We have carefully considered the various submissions made before us.

6. In determining the classification of any imported goods, the physical composition, dimensional specifications and intended use are the prime items for consideration. In the present case, we do not have the benefit of having on record any material, such as invoice, catalogue or any other substance on which reliance can be placed for greater understanding of the imported goods. We find that the Tribunal in the case of Manjushree Minerals (supra) also faced with the same problem. However, from paragraph 5 thereof, it would appear that the description in the invoice with benefit was available. Here, the material that was available before the Tribunal in that case, is not available before us. The Collector (Appeals) refers to certain judgments of his predecessor in the appeal memorandum and makes the effort to distinguish the previous judgments on facts. Neither the Collector (Appeals) nor the Revenue in this appeal have placed on record the relevant judgments. In the second cited judgment, the Tribunal had an occasion to examine the judgment passed by the late Shri Vaidya, but as Shri Sogani rightly submits that the case relates to blades which were attached with segments. We do not know which other order, if any, was relied upon by the Collector. We cannot, therefore, place any reliance on the Revenue’s submission that the ratio of the judgment is distinguishable.

7. In this connection, we find that there is not enough material placed on record by the Revenue for us to examine the merits of the Collector’s order. For lack of substantiation of the various pleas made in the appeal memorandum, we do not wish to disturb the impugned order. The appeal is dismissed on this count alone.

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Equivalent 1998 (99) ELT 460 (Tribunal)