2007(09)LCX0128

IN THE CESTAT, WEST ZONAL BENCH, MUMBAI [COURT NO. I]

Ms. Jyoti Balasundaram, Vice-President and Shri A.K. Srivastava, Member (T)

Jesia Mistry Agencies Pvt. Ltd.

Versus

Commissioner of Customs, Mumbai

Final Order No. A/549/2007-WZB/C-I/(C.S.T.B.), dated 26-9-2007 in Appeal No. C/96/1997

Cases Quoted -

Aban Loyd Chiles Offshore Ltd. v. Commissioner - 1999(12)LCX0264 Eq 2000 (124) ELT 0746 (Tribunal) - Distinguished [Para 6]

TTG Industries Limited v. Commissioner -1997(06)LCX0022 Eq 1997 (095) ELT 0489 (Tribunal) -Distinguished [Paras 6, 7]

CEGAT'S Final Order No. C-II/1153/WZB/2002 dt. 28.3.2002 in the case of Jesia Mistry Agencies Pvt. Ltd. - Referred [Para 2]

SC's in C.A. No. 5199 of 2002 in the case of Jesia Mistry Agemcies Pvt. Ltd. - Referred [Para 2]

Advocated By -

None, for the Appellant.
Shri Pramod Kumar, JDR, for the Respondent.

[Order per: Jyoti Balasundaram, Vice-President]. -

The issue for determination in the present appeal is the eligibility of truck mounted crane imported by the appellants herein to the benefit of exemption in terms of serial No. 22 of the table to Notification 61/94, dated 1-3-1994. This entry exempts goods classifiable under Heading 84.26 except those falling under CET sub-heading 8426.41 from payment of duty. Both the authorities below have held that the goods imported fell under fie excluded sub-heading and were, therefore, not eligible to the benefit of exemption.


2. The order of the Commissioner (Appeals) was challenged by the importers before the Tribunal by filing appeal No. C/96/97 which was disposed of vide Order No. C-II/1153/WZB/2002, dated 28-3-2002 [2002(03)LCX0243 Eq 2002 (146) ELT 0171 (Tribunal)] upholding the impugned order and dismissing the appeal. The matter was carried to the Hon'ble Supreme Court in Civil Appeal No. 5199 of 2002 and the Supreme Court passed the following order:-

"It appears that the appeal by the Customs Excise & Gold (Control) Appellate Tribunal at Mumbai was disposed of in the absence of the appellant. The Tribunal found that the appellant was absent and unrepresented despite notice. Therefore, the Tribunal read the memorandum of appeal and further submissions filed before it and heard the departmental representative. It referred to some decisions of the Tribunal and held that they were of no assistance to the appellant. In respect of one judgment that is, Aban Loyd Chiles Offshore Ltd. v. CCE, 2000 (124) ELT 746, it was observed that no specific reason was indicated and it was not applicable. In respect of another judgment of the Tribunal in TTG Industries Ltd. v. CC, 1997 (083) ECR 134 it was held that same had no application because headings were different. The Tribunal has therefore noted that none of the grounds in the appeal and material produced by the appellant were accepted though many points were urged.

We consider that this to be a fit case which deserves to be heard afresh in the presence of the appellant. We, therefore, set aside the impugned order and remand the matter to the Tribunal for hearing on merits. To avoid unnecessary delay parties are directed to appear before the Tribunal on 14th May, 2007. If either of the parties is found absent on the said date, the Tribunal shall take up the appeal and dispose of the same in accordance with law.

The appeal is accordingly disposed of."


3. This is how the appeal comes up for hearing once again before the Tribunal.


4. None appears for the appellants in spite of notice; hence we heard learned SDR and perused the records.


5. Entry 84.26 and the sub-headings thereof, as they stood, at the relevant time reads as under:-

6. Initially the importers claimed classification under Customs Tariff Heading 8426.19. The claim made before the Tribunal now is classification either under this heading or alternatively under 8426.12 or 8426.99. CTH 8426.99 is excluded because it will only apply to goods not covered by the single (-) headings occurring prior to it. Among these is an entry for "other machinery; self-propelled". The residuary entry will only cover machinery which is not self-propelled. In the present case, the crane is mounted upon a truck which propels it self, i.e. it is self-propelled. Therefore, Heading 8426.99 will not be appropriate for classification of the goods in question. Heading 8426.12 is for mobile lifting frames on tyres and straddle carriers. The appellants rely upon the Tribunal's decisions 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, to support their claim for classification under CTH 8426.12. Perusal of the literature of the goods under consideration shows that the goods cannot be considered to be either mobile lifting frame or straddle carriers. As per HSN, the goods covered by CTH 8426.12 are basically frames of large tyred wheels which are used for such purposes of container lift marine. The literature produced by the appellants along with the appeal does not indicate that the vehicle consists of straddle. The goods are also not 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 that the source of power for operation of the truck and for operation of the crane are different and, therefore, we cannot consider that the goods are mobile lifting frame or straddle carriers.


7. The Tribunal's decision in Aban Loyd Chiles Offshore Ltd. cited supra, has not given any specific reasons for classifying the goods under consideration under CTH 8426.12 - the issue before the Tribunal was whether the goods fall for classification under CTH 87.05 as special purpose vehicle or under CTH 84.26 as crane. The Tribunal has held the goods to be classifiable under Heading 84.26. However, it is seen that the goods in question in that case do not move under load and, therefore, there is nothing in that decision which discusses the classification inter se amongst the various sub-headings of CTH 84.26. The Tribunal's decision in TTG Industries Ltd. cited supra is also on classification between Headings 87.05 and 84.26 and there is no discussion as to under which sub-heading of CTH 84.26 the goods will fall.


8. The appellants have not substantiated their claim for classification either under CTH 8426.19, 8426.12 or 8426.99. We are in agreement with the findings of the authorities below that the goods fall for classification under CTH 8426.41. As a result thereof, the benefit of exemption claimed by the appellants is not admissible.


9. Accordingly we uphold the impugned order and reject the appeal.

(Pronounced in Court)

Equivalent 2008 (221) ELT 0381 (Tri. - Mumbai)

Equivalent 2008 (084) RLT 0155 (CESTAT-Mum.)