2002(03)LCX0243

IN THE CEGAT, WEST ZONAL BENCH, MUMBAI

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

JESIA MISTRY AGENCIES PVT. LTD.

Versus

COMMISSIONER OF CUS., MUMBAI

Order No. 1153/2002-WZB/C-II, dated 28-3-2002 in Appeal No. C/96/97-Bom.

Cases Quoted

Aban Loyd Chiles Offshore Ltd. v. Commissioner — 1999(12)LCX0264 Eq 2000 (124) ELT 0746 (Tribunal) — Distinguished     [Paras 5, 7]

TTG Industries Ltd. v. Commissioner — 1997(06)LCX0022 Eq 1997 (095) ELT 0489 (Tribunal) — Distinguished [Paras 5, 7]

Advocated By :   None, for the Appellant.

Shri Virag Gupta, JDR, for the Respondent.

[Order per : Gowri Shankar, Member (T)]. - The question for consideration in this appeal is the eligibility of the truck mounted crane imported by the appellant to the benefit of exemption contained in entry 22 of the table to the Notification 61/99. The entry exempts from duty goods classifiable under Heading 84.26 other than those falling under sub-heading 41 of that heading. In the order impugned in the appeal, the Commissioner (Appeals) has declined to interfere with the order of the Assistant Commissioner holding that the goods were classifiable under sub-heading 41 and hence not entitled to the exemption.

2. The appellant is absent and unrepresented despite notice. We have read the memorandum of appeal and further submission filed before us and heard the departmental representative.

3. Entry 84.22 and its sub-headings, as it stood at the relevant time, reads as follows :-

4. The appellant’s claim initially was for classification under sub-heading 19 as “—Other”. The claim now being made before us is classification either under this heading or alternatively under sub-heading 12 or sub-heading 99. Sub-heading 99 can clearly be excluded because it will only apply to goods not covered by the single (-) headings occurring before it. Among these is “other machinery; self-propelled”. The residuary heading therefore will only cover machinery not self-propelled. The crane in this case mounted upon a truck which propels itself. The last heading therefore will not apply.

5. Sub-heading 12 is for mobile lifting frames on tyres and straddle carriers. The decisions of the Tribunal in TTG Industries Ltd. v. CC - 1997(06)LCX0022 Eq 1997 (095) ELT 0489 (T) = 1997 (073) ECR 134 and Aban Loyd Chiles Offshore Ltd. v. CCE - 2000 (124) ELT 746 are relied upon in support.

6. Sub-heading 12 reads “mobile lifting frames on tyres and straddle carriers”. It is not possible for us, after reading the literature with regard to the goods under consideration that the appellant produced, to consider the goods to be either mobile lifting frame or straddle carriers. The Explanatory Notes to the Harmonised System of Nomenclature lead us to believe that these are basically frames of large tyred wheels which are used for such purposes of container lift marine. The literature produced by the appellant does not indicate that the vehicle consists of straddle nor does it impel us to believe that this is a simple mobile lifting frame. The literature indicates the presence of a cab, and that the crane is mounted upon a truck which has eight wheels and twelve tyres and the source of power for operation of the truck and for the crane are different. It is not therefore possible for us to consider these goods either to be mobile lifting frame or straddle carriers.

7. The decision of the Tribunal in Aban Loyd Chiles Offshore Ltd. v. CCE - 2000 (124) ELT 746 has not given any specific reason for classifying the goods under consideration under sub-heading 12 of Heading 84.26. The issue before the Tribunal was whether the goods should be classifiable under Heading 87.05 as special purpose vehicle or under Heading 84.26 as a crane. The Tribunal has listed a number of factors on the basis of which it has held the goods to be classifiable under Heading 84.26. There is however only one sentence, that the crane does not move under load as already noted and therefore there is nothing in the decision which discusses classification inter se amongst various sub-headings of Heading 84.26. This decision therefore offers no assistance. The ratio of the Tribunal’s decision in TTG Industries Ltd. v. CC - 1997(06)LCX0022 Eq 1997 (095) ELT 0489 (T) = 1997 (073) ECR 134 was concerned with classification inter se between Headings 87.05 and 84.26 and was not concerned with classification in any of the sub-headings of Heading 84.26.

8. None of the grounds in the appeal or the material produced by the appellant gives us any basis to say that the goods would be classifiable under either of the sub-heading that the appellant claimed. The certificate of the chartered engineer relied upon not even referred to in the appeal. We therefore do not [find] sufficient ground for interference.

9. Appeal dismissed.

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Equivalent 2002 (146) ELT 0171 (Tri. - Mumbai)