1999(08)LCX0334

IN THE CEGAT, COURT NO. II, NEW DELHI

S/Shri S.S. Kang, Member (J) and V.K. Agrawal, Member (T)

TRACK PARTS OF INDIA LTD.

Versus

COLLECTOR OF CUSTOMS, CALCUTTA

Final Order No. 132/99-B2, dated 10-8-1999 in Appeal No. C/566/95-B2

CASES CITED

Collector v. S.S. Industries — 1994(08)LCX0098 Eq 1994 (074) ELT 0794 (S.C.) — Referred                                    [Para 2]

Tube Investment of India v. Collector — 1993(11)LCX0051 Eq 1994 (071) ELT 0171 (Tribunal) —Referred                [Para 2]

Advocated By : Shri Shunil Tyagi, Advocate, for the Appellant.

Shri Ashok Kumar, JDR, for the Respondent.

[Order per : V.K. Agrawal, Member (T)]. - The issue involved in this appeal filed by M/s. Track Parts of India Ltd. is whether the seal assembly and dust seal are classifiable under sub-heading No. 8431.49 of the CTA as claimed by the Appellants or under sub-heading 8485.90 as decided by the Asstt. Collector and confirmed by the Collector (Appeals) in the impugned order.

2. Shri Shunil Tyagi, ld. Advocate appearing on behalf of the Appellants, submitted that the appellants are manufacturing undercarriage parts and track assemblies for different models of Bulldozers/Crawler Tractors; that specific parts which are identified by part number are required for specific model of the Bulldozers and Crawler Tractors. They had also placed the orders by model number and part numbers with their suppliers abroad. He, in this regard, referred to the letter dated 21-8-1993 placing the order with the supplier. He also drew our attention to the invoices dated 10-3-1994 of M/s. Nok Singapore Trading Pte. Ltd. in which the goods were mentioned along with their part numbers. The ld. Counsel submitted that the particular part which is identified by its number can be used only in the particular model of the Bulldozers. He submitted that the Bulldozers are classifiable under Heading 84.29 of the Customs Tariff Act and the parts of such Bulldozers are classifiable under Heading 84.31 if they are suitable for use solely and principally with the Bulldozers falling under Heading 84.29. He placed reliance on the decision in the case of Collector of Customs (Appeals), Bombay v. S.S. Industries - 1994(08)LCX0098 Eq 1994 (074) ELT 0794 (S.C.) and submitted that the Department had not produced any evidence to controvert their averments that specific part is required for the specific model of Bulldozers. They have only rejected the submissions made by them. As per Supreme Court decision it is for the department to establish that the goods are different. He also relied upon the decision of the Tribunal in the case of Tube Investments of India v. C.C., Madras - 1994 (074) ELT 0171 (T).

3. Shri Ashok Kumar, ld. DR, arguing on behalf of the Revenue, submitted that the issue involved is an issue of fact and not of law; that the Appellants have not produced any evidence to show that the imported goods were required for a specific model of Bulldozer and Tractor. He also referred to the examination report on the reverse side of the Bill of Entry and submitted that it is about the part number of the seal assembly or dust seal imported by the Appellants. Finally he reiterated the findings as contained in the impugned order passed by Collector (Appeals) to the effect that since the part cannot be correlated with the part number because of non-embossing of the part numbers on the parts, their exclusive use as claimed becomes doubtful.

4. We have considered the submissions made by both sides. It has been shown by the ld. Counsel, appearing on behalf of the appellants, that the purchase order and the invoice received with the goods that the order was placed and the goods were supplied as per part number which were meant for specific model of the Bulldozers or Crawler Tractor. The department on the other hand has not brought any findings on record to show that these impugned goods are not meant for particular model of Crawler Tractor or Bulldozer as claimed. They have changed the classification only on the basis of doubt as the part number was not embossed on the seal assembly and dust seal. We find that the Appellants have sufficiently proved that the impugned goods were principally and solely were to be used in the manufacture of Bulldozers which was falling under Heading 84.29 and as such they are classifiable under sub-heading 8431.49. Accordingly we allow the appeal.

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Equivalent 1999 (113) ELT  417 (Tribunal)