2002(03)LCX0252

IN THE CEGAT, WEST ZONAL BENCH, MUMBAI

S/Shri Gowri Shankar, Member (T) and G.N. Srinivasan, Member (J)

INDIAN FARMERS FERTILISERS CO-OP. LTD.

Versus

COMMR. OF CUS. ACC, MUMBAI

Order No. 1048/2002-WZB/C-II, dated 4-3-2002 in Appeal No. C/588/96-Bom.

CASE CITED

Novopan India Ltd. v. Collector — 1994(09)LCX0128 Eq 1994 (073) ELT 0769 (S.C.) — Referred........................ [Para 2]

Advocated By : Shri Ravinder Jain, Consultant, for the Appellant.

Shri Viraj Gupta, DR, for the Respondent.

[Order per : Gowri Shankar, Member (T)]. - The question for consideration in this appeal is the eligibility to the benefit of the exemption contained in Notification No. 172/89 of the parts of compressor that the appellant imported. The notification grants, in entry 12 of the Table to it, partial exemption from duty to “goods falling under Heading 8414.90 excluding parts of machinery and equipment for use in air-conditioning.” Heading 8413.92 includes air or other gas compressors and fans. Sub-heading 30 is for compressors of a kind used in refrigerating equipment. Sub-heading 90 is for parts of goods classifiable under Heading 8414. The benefit of the exemption therefore would be available on parts of compressors other than parts of compressors of a kind used in refrigeration equipment.

2. In the order impugned in the appeal, the Commissioner (Appeals) has concluded that the benefit of the exemption has rightly been denied for the reason that they were “parts of air compressors and refrigeration compressor as per their technical write-up dated 21-12-1990 enclosed with the B/E.” He has also concluded wrongly that the basis of the claim was incorrect classification of the goods under sub-heading 90, whereas they ought to have been under sub-heading 30. This is wrong for the reason that all parts of Heading 8414 will be classifiable under sub-heading 90. We have already indicated that sub-heading 30 of the heading is for compressors of a particular kind; parts of such compressors would also be classifiable under sub-heading 90. This incorrect observation on the part of the Commissioner (Appeals), however, does not have any bearing upon the reason for which he denied the exemption. The representative of the appellant seeks to rely upon the write-up from its factory and a diagram. Even if we accept that the diagram and the write up are correct, all that they show that the compressor parts of which were imported, was used for compressing ammonia. This however, falls far short of showing that the parts were not those of a compressor “of a kind used in refrigerating equipment.” The Commissioner refers to the importer’s own write-up for his conclusion that parts were refrigerating compressors. The write-up in fact accepts that “the goods were originally terms as refrigeration compressor by OEM” (original equipment manufacturer). Therefore, there is no material produced by the appellant in support of its claim. It is settled law (Novopan India Ltd. v. CCE, 1994 (073) ELT 769) that it is up to the party who claims the exemption to substantiate it by evidence. This not having been done, we find no ground for interference.

3. The merits of the case having been considered, we have not considered it necessary to consider the applicability of the provision of sub-section (2) of Section 27 of the Act relating to the incidence of duty having been passed on.

4. Appeal dismissed.

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Equivalent 2002 (145) ELT 0659 (Tri. - Mumbai)