Collector
of Customs, Bombay Vs. M/S.Grasim Industries Limited
[2000] INSC 330 (11 May 2000)
S.V.Patil,
S.S.M.Quadri, S.P.Bharucha
L.I.T.J
SYED SHAH MOHAMMED QUADRI, J.
The
short question that arises in this appeal is:
whether
hydrochloric acid synthesis unit of combustion chambers is classifiable under
Heading 84.17(1) or Heading 68.01/16(1) of the Customs Tariff Act, 1975. The
appeal came up before us on reference by a Bench of two learned judges, taking
the view that the decision of this Court in [1995 (75) E.L.T. 6 (S.C.)] holding
that a part of paper finishing machinery was classifiable under Heading 84.31
of Customs Tariff Act, 1975 (for short, the CTA) and not under Heading
68.01/16(1) of the CTA, is seemingly different of Customs [1997 (95) E.L.T. 455
(S.C.)]. The facts giving rise to this appeal fall in a short compass. The
respondent imported four cases of hydrochloric acid synthesis unit of
combustion chambers and claimed that they are classifiable under Heading
84.17(1) of the CTA. By order dated October 7, 1982, the Assistant Collector of
Customs, Bombay, rejected the claim and classified
them under Heading 68.01/16(1) of the CTA. The Collector of Customs (Appeals), Bombay, acceded to the contention of the
respondent for their classification under Heading 84.17(1) of the CTA. The
appellant appealed before the Customs Excise and Gold (Control) Appellate
Tribunal, New Delhi (for short, the CEGAT). On November 11, 1991, the CEGAT confirmed the order of
the Collector of Customs (Appeals) and dismissed the appeal. The appellant
challenges the order of the CEGAT in this appeal. Mr.N.K. Bajpai, learned
counsel appearing for the appellant, has contended that the respondent imported
parts of machinery which are articles of graphite falling within Heading
68.01/16(1) of the CTA and as Note 1(a) of Chapter 84 of the CTA specifically
excluded articles falling within Chapter 68 of the CTA, they were wrongly held
to be classifiable under Heading 84.17(1) of the CTA. He Collector of Customs,
Bombay [1986 (23) E.L.T. 283], the larger Bench of the Tribunal by majority
held that the spare parts of the machinery made of carbon were classifiable
under Heading 68.01/16 of the CTA which was approved by this Court in Saurashtra
Chemicals vs. Collector of Customs (supra). Therefore, the order under appeal
has to be set aside.
In
support of the order under appeal, Mr. Joseph Vellapally, learned senior
counsel appearing for the respondent, drew our attention to title of Chapters
68 and 84 of the CTA to point out that plants and machinery fell within Heading
84.17(1) of the CTA and not within Heading 68.01/16(1) of the CTA. According to
the learned counsel, Note 1(a) to Chapter 84 of the CTA has no application to
machinery or part of machinery covered by Heading 84.17(1) of the CTA. As such
the Collector of Customs (Appeals) as well as the CEGAT rightly classified the
goods under Heading 84.17(1) of the CTA.
Inasmuch
as the controversy relates to the interpretation of Headings 68.01/16(1) and
84.17(1) of the CTA, it would be useful to quote them here:
CHAPTER
68 ARTICLES OF STONE, OF PLASTER, OF CEMENT, OF ASBESTOS, OF MICA AND OF
SIMILAR MATERIALS NOTES This Chapter does not cover: (a) to (n) *** *** ***
_________________________________________________________ Heading Sub-heading
No. Standard Central No. and description Rate of Excise of article duty Tariff
Item _________________________________________________________ 68.01/16
Articles of natural or 22F, artificial stone, of 23C, agglomerated natural or
51 artificial abrasives, of plastering material, of cement, of concrete, of
asbestos, of asbestos-cement or cellulose fibre cement, or of mica;
articles
of vegetable materials agglomerated with mineral binders; mineral wools; expanded
mineral materials;
articles
of other mineral substances, not elsewhere specified or included :
(1)
Not elsewhere 100% specified (2) Grinding stones,grinding 40% wheels and the
like, of natural stone, of agglomerated natural or artificial abrasives, and
segments or other finished parts of such stones and wheels but excluding hand
polishing stones, whet stones, oil stones, and hones.
A
perusal of the title of Chapter 68 of the CTA and the description of the
sub-heading shows that what is brought in thereunder are articles of stone,
plaster, cement, asbestos, mica or similar materials. There is no scope to
bring within that Chapter machinery and mechanical appliances and parts
thereof.
CHAPTER
84 BOILERS, MACHINERY AND MECHANICAL APPLIANCES; PARTS THEREOF NOTES 1. This
Chapter does not cover:
(a) millstones,
grindstones and other articles falling within Chapter 68;
2. to
5. *** *** *** _________________________________________________________
Heading Sub-heading No. Standard Central No. and description Rate of Excise of
article duty Tariff Item
_________________________________________________________ 84.17 Machinery,
Plant and similar laboratory equipment, whether or not electrically heated, for
the treatment of materials by a process involving a change of temperature such
as heating, cooking roasting, distilling, rectifying sterlising, pasteurising
steaming drying, evaporating, vaporising, condensing or cooling, not being
machinery or plant of a kind used for domestic purposes;
instantaneous
or storage water-heaters, non electrical:
1. Not
elsewhere specified 40%
2.
Machinery and equipment 60% for food and drink other than those used for
treating milk, instantaneous or storage water-heaters, non- electrical;
machinery and equipment imported for use in air conditioning.
The
title of Chapter 84 of the CTA leaves no room for doubt that the goods falling
within it are boilers, machinery, and mechanical appliances and parts thereof.
The description and the sub- headings enumerate various categories of machinery
and appliances falling thereunder.
At the
beginning of the Chapter are Notes which specify what articles are excluded
from that Chapter. A reading of the Note 1(a) on which reliance is placed by Mr.Bajpai,
suggests that it excludes millstones, grindstones and other articles falling
within Chapter 68 from being classified under Heading 84.17(1) of the CTA.
There can be no controversy about the proposition that if the goods in question
are machinery, plant and similar laboratory equipment or parts thereof, they
fall within Chapter 84 of the CTA; but if they are millstones, grindstones or
other articles that fall within Chapter 68 of the CTA, they get excluded from
Chapter
84. A
perusal of the order of the Tribunal shows that though the combustion chamber of
the goods in question is made of graphite, they constitute a complete unit,
consisting of three parts fitted with burners and other accessories forming
part of synthesis unit of caustic soda plant and thus an equipment. In that
equipment hydrogen is burnt with chlorine and thereby a new product
hydrochloric acid is produced. In the latter part of the judgment the Tribunal
recorded the following finding :
Further
there is no dispute that what they have imported is for combustion chambers and
drawing also indicates that the combustion chamber consist of three parts, that
is, upper shell, intermediary shell and lower shell alongwith fittings. Based
upon the records and functioning of the imported parts we are of the opinion
that they constitute a complete unit.
In
view of this categorical finding, there can be no hesitation in holding that
the goods in question fall within Heading 84.17(1) of the CTA unless it is
shown they being millstones, grindstones and other articles falling within
Chapter 68 have to be excluded from Heading 84.17(1) of the CTA in view of Note
1(a) of Chapter 84. Obviously the articles in question are not millstones,
grindstones or the like. We have carefully gone through various sub-headings of
Chapter 68 of the CTA and we are of the view the contention that the goods in
question fall within Chapter 68 has no substance. In the case of Saurashtra
Chemicals, Porbandar (supra), a larger Bench of the Tribunal by majority took
the view that carbon rings and carbon seals which are used as spare parts in turbosets
and compressors fall within the Heading 68.01/16(1) of the CTA and the minority
held that they fall within Heading 84.65 of the Customs Tariff Schedule. The
view of the majority was approved by this Court in Saurashtra Chemicals case
(supra). No reasons are given in that case. But a perusal of the order of the
Tribunal shows the question there related to articles which were spare parts
made of carbon and not to a complete unit or an equipment, unlike in the
present case where the goods constitute a complete unit.
Also,
the goods here are not made entirely of graphite;
only a
part thereof is graphite. Further in Saurashtra Chemicals case, there was
agreement between the parties that those articles would fall both within
Heading 68.01/16(1) as well as within Heading 84.65.
In Ballarpur
Industries Ltd.s case (supra), granite press rolls fitted with mild steel
shafts and end-plates and its cavities filled with concrete were admitted to be
a part of the paper finishing machinery. Disagreeing with the judgment of the
Tribunal that parts of the machinery were classifiable under Chapter 68 of the
CTA, this Court held that they were classifiable under Heading 84.31 of the
CTA.
The
distinction between the Saurashtra Chemicals case and the Ballarpur Industries
case is that in the former case the articles made of carbon were conceded to
fall both within Heading 68.01/16(1) as well as within Heading 84.65 being
spare parts of machines whereas in the latter case the goods were part of
machinery not falling within Chapter 68 and were not made entirely of granite.
In the instant case, in view of the finding recorded by the Tribunal that the
goods in question constitute a complete unit, an equipment, and are not made
only of graphite they are clearly classifiable under Heading 84.17 (1) of the
CTA. We, therefore, find no illegality in the order of the Tribunal.
The
appeal fails and it is accordingly dismissed with costs.
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