1998(08)LCX0162

IN THE CEGAT, EASTERN BENCH, CALCUTTA

Shri P.C. Jain, Member (T) and Smt. Archana Wadhwa, Member (J)

COMMISSIONER OF CUSTOMS, CALCUTTA

Versus

BHARAT SALES CORPORATION

Order No. A-765/98-Cal., dated 12-8-1998 in Appeal No. C/R-150/97

Cases Quoted

International Auto Supplier v. Collector — 1994 (078) ELT 0645 (Tribunal) — Referred         [Para 1.2]

Bharat Sales Corporation v. Collector — 1987(08)LCX0065 Eq 1987 (031) ELT 0820 (Tribunal) — Referred     [Paras 1.3, 3.2]

Advocated By : Shri S.N. Ghosh, for the Appellant.

S/Shri K.K. Chatterjee and D.N. Bhowmik, Advocates, for the Respondent.

[Order per : P.C. Jain, Member (T)]. - Briefly stated facts of the case are as follows :-

1.1 The respondents herein imported in July, 1995, 3000 `Water Pump Bearing’ having part No. FPS-348. Goods were declared as above in the B/E filed by respondents further amplifying the above description as “Integral Shaft Bearing”. The goods were assessed by the Customs Authorities as ball/roller bearing falling under sub-heading 8482.80 of the C.T.A., 1975 having description as “Ball or Roller Bearings - other, including combined ball/roller bearings” and duty was paid accordingly. The respondents however, had claimed classification under sub-heading 8413.91 as part specially designed for use in water pump r.w. Notification No. 49/95-Cus.

1.2 The respondents thereafter filed a refund claim of duty of Rs. 1,20,888.26 on the ground of assessment under wrong classification of the tariff. The original authority rejected the claim of the respondents. Findings of the Asstt. Commissioner are as follows :-

“On seeing of the dimension table and sample, it was found that in spite of the integral shaft bearing passing through the goods remains ball bearing, as such they would fall under sub-heading 8482.80 as assessed by the concerned group”.

He relied on a decision of the Tribunal in the case of International Auto Suppliers v. C.C. [1994 (078) ELT 645] which held, according to him, that integral shaft bearing without any base is classifiable under Heading 84.62(1) of C.T.A., 1975, which correspond to sub-heading 8482.80 in the present. Hence, he rejected the refund application.

1.3 On appeal before the Commissioner of Customs (Appeals), the respondents herein succeeded lower appellate authority found that the judgment relied upon by the A.C.C. was delivered in 1983, though reported in 1994 in ELT There is a subsequent judgment of the Tribunal in the respondent’s own case reported in 1987 (031) ELT 820 which held that integral shaft bearing/water pump bearing is a part of water pump; it is not a bearing simpliciter. It is a combination of two parts - a ball bearing and a shaft. He also relied upon a decision of the Government of India comprising a Bench of three persons - Special Secretary (R.A.), Addl. Secretary and a Joint Secy. in the matter of Jain Brothers, New Delhi reported in 1981(04)LCX0002 Eq 1981 (008) ELT 0384 (G.O.I.). Commissioner (Appeals) took note of the Customs House Practice vide Bs/E No. I-303 dated 6-11-1995 and I-240 dated 5-6-1996 wherein the goods were assessed under sub-heading 8413.91.

1.4. Aggrieved against the said order, Revenue has filed the present appeal.

2.1 Ld. SDR, Shri S.N. Ghosh for the Revenue has drawn attention to the “Introduction” of May, 1997 catalogue of the manufacturers. According to it, besides the use of integral shaft bearings in the `automotive water pumps’, these have numerous other application including textile machinery, agricultural equipment, rotary movers, woodworking machinery and in the automotive industry. It has, therefore, been urged that considering the widespread use of integral shaft bearings, its classification should not be restricted to Heading 8413.91; the proper heading would be `other bearing’ under sub-heading 8482.80. It has also been urged that the `exclusion’ notes in Explanatory Notes, under under Tariff Heading 84.82 would not be applicable. What are excluded from Tariff Heading 84.82 are `machinery parts’ incorporating ball, roller or needle roller bearing and not vice versa i.e., ball/roller/needle roller bearing incorporating other parts, e.g., shafts in the case.

2.2 Memo. of appeal of the Revenue attempts to take care of the Tribunal’s and G.O.I.’s judgments referred to above by urging that the case was not properly put before the two fora, as now stated aforesaid.

2.3 Ld. JDR, also relies on a decision of the tariff conference of Collector, which in turn takes support from a ruling of the Customs Cooperation Council in Brussels in the case of classification of Treadle Rollers for Looms.

3.1 Ld. Advocate, Shri D.N. Bhowmick for the respondents submitted that in relying on the “Introduction” to catalogue, Revenue has ignored that the bearing having part No. FPS-348; it figures in the catalogue of “RHP Water Pumps Bearings Division” (May, 1997) at page 14 thereof. `Introduction’ while stating “RHP offer integral shaft bearing nuts for a full range of applications, including textile machinery, agricultural machinery, rotary movers and woodworking machinery” only means that there are other integral shaft bearings manufactured/supplied by RHP which have application in each of the above industries. It does not mean, submits the ld. Advocate, that the bearing in question having part No. FPS-348 has also its application in each of the industries mentioned above. Revenue has not produced any evidence to that effect.

3.2 He further submits that date of tariff conference of Collectors is not given. There is no indication that the Conference has considered the judgment of the Tribunal reported in 1987 (031) ELT 820.

3.3 As regards the ruling of C.C.C. in the case of Treadle Rollers for looms, ld. Advocate submits that it is not related to the goods in question. Besides, it is submitted that the judgment of the Tribunal is binding on the authorities. There is no adequate reason to differ from the same. He therefore, prays for dismissing the appeal.

4.1 We have carefully considered the pleas advance from both sides and observe that no new fact or argument has been advanced by the Revenue which was not before the two earlier authorities - G.O.I. and the Tribunal - who have already held against the classification now proposed before us. Tribunal has rightly observed in the respondent’s own case that the goods are a combination of two parts - shaft and bearing. It is not a bearing simpliciter. In any case, the goods cannot be considered to be a `bearing’ - ball, roller, needle or any other - incorporating a machinery part, so as to bring it within the scope of any of the sub-headings of Heading 84.82 relating to ball or roller bearing. We also note that the Revenue has not adduced any evidence - burden for which falls on the Revenue - to show that `integral shaft bearings’ are known to the trade as ball/roller bearings.

4.2 We also agree with the ld. Advocate for the respondents that no evidence has been adduced by the Revenue that the goods having part No. FPS-348 find application in other industrial machines, apart from water pumps. Reliance placed by Revenue on the `Introduction’ to the catalogue does not help it in this respect.

4.3 We, therefore, do not find any good ground to interfere with a cogent and well-reasoned order of the Commissioner, Customs (Appeals). Revenue’s Appeal is, therefore, dismissed.

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Equivalent 1999 (105) ELT 733 (Tribunal)