2000(04)LCX0182
IN THE CEGAT, EASTERN BENCH, CALCUTTA
Smt. Archana Wadhwa, Member (J) and Dr. S.N. Busi, Member (T)
COMMISSIONER OF CENTRAL EXCISE, CALCUTTA-III
Order Nos. A-430, 431/CAL/2000, dated 13-4-2000 in Appeal Nos. E/95-96/99
CASES CITED
Commissioner v. Anup Engg. Co. Ltd. — 1996(09)LCX0165 Eq 1997 (089) ELT 0690 (Tribunal) — Followed ..... [Para 2]
Filtron India v. Collector — 1996(03)LCX0089 Eq 1996 (083) ELT 0526 (Tribunal) — Followed ............................. [Para 3]
Advocated By : Shri B.K. Munsi, Consultant, for the Appellant.
Shri R.K. Roy, JDR, for the Respondents.
[Order per : Archana Wadhwa, Member (J)]. - The issue involved in the present appeal as regards the correct classification of the product "Dished Ends" manufactured by the appellants. Whereas the appellants have claimed classification under sub-heading 7308.90 (now sub-heading 7326.90), the Department has classified under heading 8607.00, as parts of the railway or tramway locomotive or rolling stock.
2. Shri B.K. Munsi, Learned Consultant appearing for the appellants, submits that the classification of 'Dished Ends’ was considered by the Tribunal in the context of erstwhile Tariff in the case of C.C.E., Ahmedabad v. Anup Engg. Co. Ltd. - 1997 (089) ELT 690 wherein it was held that Dished Ends were classifiable under erstwhile tariff item 25(13) (iv) and not under residue Tariff Item 68. As such he submits that the issue is decided against the Revenue though under erstwhile tariff item, but same reasons and consideration would apply for classifying the ‘Dished Ends’ under Chapter 73. He further submits that the authorities below have classified the goods under Chapter 86 on the ground that ‘Dished Ends’ in question are mainly used by their customer for fitting the same into railway tank wagons. This factual position, argues the learned Consultant, is not correct. Drawing our attention to the order of the Asstt. Commr. he submits that this plea was specifically taken before the original adjudicating authority that ‘Dished Ends’ are not solely used as parts of railway tank wagon but the same are used for various purposes such as being fitted on pressure vessels, furnaces, boilers, tanks, railway wagon etc. They had also specifically pleaded before the Commissioner (Appeals) that their buyers are not railway wagon manufacturer and a list of 25 customers were provided to the Asstt. Commr. who were in no way concerned with the railway wagons. As such he submits that inasmuch as ‘Dished Ends’ have various uses they cannot be considered as parts of railway locomotive.
3. In this connection he also draws our attention to the Tribunal's decision in the case of Filtron India v. C.C., Bombay - 1996(03)LCX0089 Eq 1996 (083) ELT 0526 (T) wherein it was observed that an article having multiple uses in different industries cannot be classified on the basis of use in one of specific industry though the importer might have imported the goods for use in that particular industry.
4. Countering the argument Shri J.M. Kennedy, learned JDR, reiterates the findings of the authorities below and submits that 'Dished Ends' are manufactured according to the specification provided by the appellant's sister unit in Agarpara for captive consumption for fitting into railway tank wagon. As such it becomes clear that ‘Dished Ends' are specifically fitted into railway locomotive and the same have to be classified under heading 8607.00 in the light of the interpretive rules.
5. We have considered the submissions made from both sides. We find that it has been the case of the appellants right from the beginning that 'Dished Ends' are cleared by them to their customers who belong to different industries and are not connected with railway wagons. This position has not been rebutted in his order. A list of 25 customers non-associated with the railway industries was given by the appellants. Commissioner (Appeals) has also observed that as the major part of the goods manufactured by the appellants was being used by their sister unit for fitting into railway tank wagon, the fact that the same were also capable of fitting elsewhere as claimed by the appellants cannot alter the above position. As such it seems that there is no dispute about factum of use of the said item by other customers not connected with the manufacturer of railway wagon. In fact the appellants have also referred to a statement attached to the show cause notice showing sale of goods during different periods to other manufacturers. A scrutiny of the said list shows that out of total number of 36 dished ends two were delivered to wagon manufacturer. All other clearances are to non-wagon manufacturer. Similarly during the period June, 1995 to October, 1995 out of 55 number of dished ends 12 numbers were delivered to wagon manufacturer. From these figures, it becomes clear that ‘Dished Ends’ are not used exclusively as a part of the railway locomotive. As such we hold that the ratio of Anup Eng. Co. Ltd. though in the context of erstwhile tariff item would squarely apply to the present case also. Reliance by the appellants on the decision of Filtron India Ltd. is also appropriate inasmuch as it was held that where the items are not mainly or principally used for processing or treatment of milk even and it had some other applications also, the same would be classified as an item of general application although it may be true that the importer had himself imported it for being supplied to various dairies for processing milk and milk products. Goods meant for supply to a particular industry is not the criteria for classification of goods capable of multiple uses. As such even if the appellants are held to be supplying their items to the units manufacturing railway wagons the same cannot be treated as parts of locomotive classifiable under heading 86.07 in view of their use in the other industries also. Accordingly, we hold that 'Dished Ends' are properly classifiable under Chapter 73 as claimed by the appellants and not under Chapter 86 as held by the Revenue. Appeal is allowed with consequential relief to the appellants.
Equivalent 2000 (122) ELT 0522 (Tribunal)