1999(01)LCX0205

IN THE CEGAT, COURT NO. II, NEW DELHI

S/Shri Lajja Ram, Member (T) and A.C.C. Unni, Member (J)

EUREKA POLYGEMS

Versus

COMMISSIONER OF CUSTOMS, NEW DELHI

Final Order No. 93/99-B2, dated 25-1-1999 in Appeal No. C/600/95-B2

Advocated By : None, for the Appellants.

Shri K. Panchaksharan, JDR, for the Respondents.

[Order per : A.C.C. Unni, Member (J)]. - The question raised in this appeal relates to the correct classification of Polyester Plastic Button Making Machines imported by the appellants. The Department has sought to classify the machine under Tariff Heading No. 84.65. The party’s contention is that it is classifiable under Heading No. 84.77.

2. When the matter was called, nobody was present for the appellants. They have however, sent written submissions and had prayed for decision on merits.

3. We have heard Shri K. Panchaksharan, JDR and have perused the records.

4. The Customs Tariff Act under Chapter 84 sub-heading Nos. 84.65 and 84.77 are as under :-

“84.65 Machine-tools (including machines for nailing, stapling, glueing or otherwise the shaping or surface working assemblies) for (including cutting, forming and assembling of wood and materials derived from wood), cork, bone, hardened rubber, hard plastics or similar hard materials (horn, coroso, mother of pearl, ivory).

84.77 Machinery for working rubber or plastics or for the manufacture of products from these materials, not specified or included elsewhere in this Chapter."

5. The Assistant Collector in the adjudication order had taken into consideration the present appellants’ contention that the blanks of the buttons had to be given a constant warmness through infra-red light source to make them soft and that the blanks have to be of uniform softness before the hopper fed the blanks into the turning unit. He also found an actual demonstration of the machine that when the blanks were not heated before feeding for turning/drilling etc. they broke. He observed that this did not however, suggest that the machine did not work on hard plastics or other hard materials. It only meant that material of which the blanks are made cannot withstand the operations being carried out in that condition of hardness. He dismissed the appellants’ contention that since the catalogue does not mention that the machine is capable of working on hard materials, it was incapable of working on hard materials. Assistant Collector observed that the absence of any mention in the catalogue about the degree of hardness at which the machine is capable of making buttons does not mean that the machine works only on soft plastics. In appeal, the Collector (Appeals) confirmed the adjudication order and observed that the term `hard plastic’ is to be understood in the context of plastics generally accepted as `hard’, which was different from `other kinds of plastics’. In view of the fact that buttons can only be made from sufficiently hard plastic and the buttons are made from polyester resin described as having high strength through thermo-setting process, it is apparent that the machine imported were machine tools for working on hard plastic and therefore, correctly classifiable under T.H. No. 8465, held the Commissioner (Appeals).

6. In the written submissions, the appellants have underlined the fact that constant warmness had to be given to the blanks of the buttons through infra-red light source to make them soft before they were further worked. Otherwise the blanks get broken as had been observed by the Assistant Collector himself after seeing the process. As regards the order-in-appeal, appellants have submitted that explanation to sub-heading No. 8465 in the H.S.N. was contrary to the conclusions arrived at by the Collector (Appeals) in the impugned order though the order had relied on the H.S.N. They also relied on the catalogue and opinion given by the suppliers confirming that the machines were meant for making plastic/polyester buttons only and hand materials like bone, urea, trocas and madreperla cannot be processed on the said machines. For processing hard materials machine with special turning unit and special electrical equipment was being provided.

7. We find that the emphasis of Tariff sub-heading No. 84.65 is on machine tools for working on hard materials. It is not in dispute that the blanks of buttons on which the drilling is done is a hard material. The appellants’ contention is that the said hard material is further processed for making it soft before it is drilled for purposes of making buttons. This process according to the appellants would take their machine out of the ambit of Chapter sub-heading No. 84.65. We are of the view that neither the fact that the catalogue does not describe the machine as capable of working on hard materials nor the fact that the hard plastic blanks are softened before they are worked on for making buttons will take it out from being classified under Chapter sub-heading No. 8465 since the plastic blank is admittedly a hard material and the machine is capable of working on such blanks even if it softened temporarily by heating.

8. We, therefore, agree with the authorities below in classifying the machine in dispute under Heading No. 8465. The appeal is accordingly dismissed.

_______

Equivalent 1999 (110) ELT 829 (Tribunal)

Equivalent 1999 (032) RLT 0674