2000(08)LCX0102

IN THE CEGAT, EASTERN BENCH, KOLKATA

Smt. Archana Wadhwa, Member (J) and Shri S.S. Sekhon, Member (T)

WESMAN ENGINEERING COMPANY LTD.

Versus

COLLECTOR OF CUS., CALCUTTA

Order No. A-1196/CAL/2000, dated 4-8-2000 in Appeal No. C/R-108/95-Cal

Advocated By :   Shri S.K. Ray Chowdhury, Advocate, for the Appellant.

Shri J.M. Kennedy, JDR, for the Respondent.

[Order per : S.S. Sekhon, Member (T)]. - The Appellants had imported three sets of High Temperature close circuit Furnace charge and discharge operation, viewing system comprising high temperature, water cooled camera and T.V. Monitors vide Bill of Entry R. No. 91/1718 dated 30-6-1991, C. No. 058-32404562 dated 26-6-1991 and paid duty under Chapter Heading 8417.00 classifying them as parts of the Furnace system.

2. The Assistant Collector of Customs (Imports) Air Cargo, Calcutta issued a show cause notice dated 16-7-1992 proposing the classification under sub-heading 8528.10 for the Camera and 8525.30 for the T.V. Monitor and confirmed the differential duty of Rs. 1,10,336/-

3. The Collector (Appeals) found as follows :-

“In the instant appeal the main arguments are that the imported Cameras and T.V. Monitor will be used in their furnace and accordingly it should be treated as part of their industrial furnace under Tariff sub-heading 8417.90. They have also referred to Note 4 of Section XVI in support of their claim. The adjudicating Authority has, however, held that the assessment of the goods under Tariff sub-heading 8528.10 and 8525.30 on merit and confirmed the short levied duty amount.

On examination of the case records and the Leaflet submitted by the appellant I find that the Camera and the T.V. Monitor have been imported separately by the appellant declaring those as Camera and T.V. Monitors. I also find from the leaflet that these items could be used in furnace or at other places only after encasing the article(s) with proper protective cover to withstand high temperature etc. The Appellant at no stage could prove that the imported Camera and T.V. Monitor are not having any stand alone function.

The Camera and T.V. Monitor are specifically assessable under Tariff sub-heading 8528.10 and 8525.30 respectively. Classification of goods is a quasi-judicial function and it is done in terms of Interpretative Rules read with Section and Chapter Note and description of the Heading. If any article is covered under specified heading, the assessing authority is not at liberty to adopt another heading/sub-heading. Moreover, in the instant case Camera and T.V. Monitor are not excluded from Tariff sub-heading 8528.10 and 8525.30. Alternatively the articles are not specifically included under Tariff sub-heading 8417.90

4. Besides, it is a well established point of law that use or enduse of an article is not relevant for the purpose of classification unless the Statute Book specifically says so. I am not agreeing with the appellant on the point that Note 4 of Section XVI is applicable to the goods in the instant case. In this case the appellant has not substantiated by evidence that the impugned Camera and T.V. Monitor are suitable for use or solely or principally to be used in the furnace.”

and upheld the Assistant Collector’s order and rejected the appeal.

4. The present appeal against the abovesaid order of the Collector (Appeals) is filed on the following grounds :

(i)      Order passed mechanically, without application of mind is misconceived, misconstrued, misdirected, wrongful, collusion, arbitrary, biased and erroneous and bad in law.

(ii)     Once Monitor/Camera are admitted as parts of furnace, which they are manufacturing, the Note No. 4 of Section XVI of the Tariff would be relevant and not Note 2 of Section XVI. As parts intended and covered by 2(a) are in common use independently and marketed in trade parlance as such. Parts specifically designed for a particular type of machine (as in this case admitted in the order) has to be classified as parts of machine vide note 2(b) of the Customs Tariff Act and hence it is covered by note 4 of Section XVI and is classified under heading 8417.90.

(iii)    Sub-heading 8528.10 and 8525.30 are consumer purpose cameras and monitors, known as such in Trade and not specially designed camera/monitor for specific purposes.

(iv)    Rule 1 of the Interpretation Rules has to be read along with section Chapter Notes and the Camera and Monitor in this case constitute a closely designed function together and can be operated effectively together.

(v)     The Collector has erred in holding endless to the irrelevant.

(vi)    The Collector has not adduced any material to come to find disagreement with note of Section XVI

5. We have heard ld. Advocate Shri Ray Chowdhury for the appellants and Shri J.M. Kennedy, JDR for the Respondents and considered the submissions and the material on record and find :-

(a)     for the purpose of classification it has first to be determined as to what is the entity to be classified. From the records i.e. the leaflet submitted by the appellant the ld. Commissioner (Appeals) has found that the Camera and Monitor have been imported separately and declared as such and the leaflet disclosed that these entities could be used in the furnace or at other places only after enclosing them in proper protective cover to withstand high temperature etc. and stand alone function could not be demonstrated/proved by the Appellants.

(b)     Once it is found as above, which is not being challenged, then it can be safely found to match the items covered under tariff heading 8528.10 and 8525.30, if they are not covered as parts of 8417.90 as claimed.

(c)      To examine the coverage of parts, under 8417.90 the H.S.N. Notes are found to cover as parts of furnace.

“Subject to the general provisions regarding classification of parts (see the General Explanatory Notes to Section XVI), parts of the goods of this heading are also classified here (e.g. ovens or furnace doors, clampers, side-shields; observation windows, arches and tuyeres and blast furnance.  (Emphasis supplied).

(d)     The entity under import cannot be considered to be an observation window of a furnace as understood by commercial parlance test, nor it ever has been demonstrated to be understood as “Window” by the importers as understood by the furnace manufacturers, dealers or technology literature. Therefore, we are not inclined to find the said entity to be classifiable under Heading 8417.90. H.S.N. Notes are a reliable guide to the scope of the entry and can be read to find the coverage of an item under the entry. Monitors of all kinds fall under 85.28 and the H.S.N. Notes under 8525.30 on the other hand prescribe television cameras used for industrial or scientific purposes, for under water work or tariff control all to be classified there. We find specially designed T.V. cameras would be covered under this Heading. Therefore the present industrial use camera falls under 8525.30. The finding of the Collector (Appeals) that the leaflet prescribes a “special encasing” for fitting on the cameras before use, which is not challenged in appeal, would indicate that the camera under import is not specially designed but it is only after it is encased in the special fitting the camera provides the specific function. Therefore, we find the imports to be covered under item 8525.30 and 8417.90 excludes them.

(e)     When the parts are specifically covered under a chapter sub-heading of 85, then they have to be classified under that heading as per Rule 2 to Chapter XVI for classification of parts. Note 4 of Chapter XVI is not applicable in this case.

6. In view of our observation the Commissioner (Appeals) order is upheld and the appeal is dismissed.

Equivalent 2001 (134) ELT 0094 (Tri. - Kolkata)