TaxTMI 
TaxTMI 
2002 (4) TMI 442
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.... his order . (OR) Whether the appeal is required to be remanded to the original authority as held by Member (Judicial). Registry is directed to place the matter before the Third Member for determination of points of difference as recorded supra. Sd./-(C.N.B. Nair)Member (T) Sd./-(S.L. Peeran)Member (J)Dated : 2-11-2001 3.  The appellants' claim is that the Caterpillars have been imported along with dredger/barges for dredging work to be carried out at Thrukadayur in Tamil Nadu. It is their case that the dredged sand was carried in barges and the caterpillar wheel loaders were used for off-loading the sand at the approved dumping places and, therefore, the caterpillars were part of dredgers which are classifiable under Customs Tariff Chapter Heading 89. The Customs authorities rejected this claim on the ground that the caterpillars are used not only for excavating the sand but also for back filling the sand. 4. When the matter came up for argument before us, ld. Counsel for the appellants submitted that dredgers being classifiable under Customs Tariff Chapter Heading 89, all the equipments used in the dredging operation with the dredger were also eligi....
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....t that these are basically earth moving machinery and were separate from dredgers. He stated that this is clear from the fact that these wheel loaders had been leased out under a separate lease deed from Amsbach Marine (S) Pvt. Ltd. He pointed out how these are very heavy machineries and each loader weighed 15 tonnes. That they had their own engines is clear from the terms of the agreement which provided that cost of oil, fuel, etc. could be borne by the Lessee. Ld. SDR also submitted that wheel loaders are basically earth moving machines which could be used for all types of civil works including in the handling of dredged material. He further contended that such use in dredging would not bring them within the classification under Heading 89 like ships, barges, etc. 6. A perusal of the records makes it clear that the caterpillar wheel loaders in question are in themselves separate heavy machineries. Each piece weighs 15 tonnes. That they move on their own is clear from the fact that lease deed specifically stipulates that cost of fuel, oil, etc. will be borne by them separately. Customs Tariff Chapter Heading 84 covers a vide variety of machineries and mechanical appliances....
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....s produced by the appellants during the course of the proceedings. Revenue was called upon to submit their comments and they have done so and also have filed parawise comments on the appeal grounds. The evidence is in the form of expert opinion given by the Managing Director of M/s. DSB Offshore Limited , London with regard to the item in question and opining that the item is used to move the arisings from the dredging operation around the flat top barges and assist in the dumping of these arisings in designated dumping areas. It further contends that the wheeled loaders are therefore considered an integral part of the system without which the dredging system could not function. This is supported by the affidavit filed by an expert who is the Project Manager of the appellant's firm. The contents of the affidavit is reproduced herein below :- "I Timothy Damian Corrigan, Son of Anthony Corrigan, residing at 12 High St., Sutton, Sandy, Beds, UK, hereby solemnly affirm and sincerely state as follows :- I am a Project Manager in Kier International Limited and as such I am conversant of the facts and circumstances of the case. I state that the two caterpillar loaders were an int....
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....n record or discussion that the item in question is a "self-propelled one" and requires to be classified under this heading. Even if the appellant's claim is rejected, for the purpose of classification, Revenue is required to show that the item is a "self-propelled" item for classification under 84.29. There is no evidence or catalogue produced before us to show that the item is a self-propelled one for classification under this heading. 11. In my opinion, the matter has to be remanded to the original authority for de novo consideration to reconsider the appellant's claim in the matter in the light of the citations which has already been taken note of in the impugned order. Thus, I order for remand of the case to the original authority for de novo consideration. Sd./-(S.L. Peeran)Member (J)Dated : 2-11-2001 POINTS OF DIFFERENCE Whether the appeal is required to be rejected as held by the Member ('Technical) in his order . (OR) Whether the appeal is required to be remanded to the original authority as held by Member (Judicial). Registry is directed to place the matter before the Third Member for determination of points of difference as recorded supra. Sd....
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....horities were confirmed. Member (J) did not agree with the views of Member (T) but held that the matter has to be remanded to reconsider the appellant's, claim in the matter in the light of citations which has been already taken note in the impugned order. Under these circumstances, the matter is placed before me to resolve the difference of opinion. 16. I have heard elaborately the argument made by ld. Counsel Shri Murugappan along with Mrs. Prameela Viswanathan on behalf of appellant and ld. DR Shri A. Jayachandran on behalf of the respondent. 17. The thrust of the case need not be mentioned as it is reflected in Members orders. I have again considered the judgement of the Tribunal reported in 2001 (135) E.L.T. 1396. I have also seen the Section Note XVII, page 1532 where it says "Parts and accessories covered more specifically elsewhere in the Nomenclature are to be excluded". When the assessee has claimed the exemption under Notification No. 20/99 under Sl. No. 250 thereof, one has to consider whether it will form part of each of the chapters as indicated in the said Sl. No. The assessee has claimed it as a part of the barge and argued before me by ld. Counsel f....