TaxTMI 
TaxTMI 
2012 (3) TMI 326
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.... applied for restoration. On 5th August, 2002 the petitioner was called upon to, in the first instance, satisfy this Court as to how the remedy by way of statutory appeal to the Customs, Excise and Gold (Control) Appellate Tribunal now Custom Excise Service Tax Appellate Tribunal (CESTAT) is not an efficacious remedy. The matter was thereafter at the instance of the parties adjourned from time to time. The writ petition was again dismissed in default on 7th March, 2006 but was yet again restored. On application of the petitioner, early hearing was allowed. However when the writ petition came up for hearing the counsels for both parties requested adjournment. In the circumstances aforesaid, request for adjournment was denied and judgment reserved with liberty to the parties to file written submissions. The petitioner has filed written submissions. None have been filed by the respondents. 2. The petitioner claims to be a manufacturer at Bangalore of the poultry equipment like poultry cages, welded wire mesh for poultry industry etc. The petitioner claimed classification of parts of Rearing and Laying Units or Batteries viz top, bottom and partition made from G.I. wire claim....
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....pt from excise under 84.36 of the Central Excise Tariff Act. That the petitioner has always clearly maintained the distinction of end-users by claiming exemption under 84.36 only when the poultry keeping equipment is sold to a poultry farmer. Under other circumstances, when the wire mesh is used for other purposes are sold for other purposes, the entire excise duty has been deposited in accordance with law. This distinction maintained by the petitioner is evident from copies of a number of invoices which are collectively annexed as Annexure P/12 (colly.). These invoices relate to the period 1990-91, 1991-92 and 1992-93. By way of illustration, a sale made to a poultry farmer, M/s Supreme Poultry Pvt. Ltd. Erode, Tamil Nadu under Invoice No.1743 dated 24.10.1991 is treated as exempted from payment of excise duty and has been cleared by providing a bank guarantee. On the other hand, a sale to Newlong Wires and Weldmesh Pvt. Ltd. under Invoice No.1819 dated 13.10.1992 is cleared with payment of full excise duty under entry 74.13. 8. Heading 84.36 (supra) is as under:- 84.36 Other agricultural, horticultural, poultry-keeping or bee-keeping machinery, including germination pla....
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.... SCC 665. to contend that writ petitions impugning Trade Notices are maintainable and the rule of exclusion of writ remedy owing to alternative remedy is not an absolute rule. Again merely for the reason of the petition having remained pending in this Court for long, we ignore the said plea also to proceed on merits of the case, though we may notice that a Division Bench of this Court in Internsil P. Ltd. v. Union of India (2007) 207 ELT 500 has held that when this Court is not found to have territorial jurisdiction and alternative remedy of appeal is available, merely because the writ petition has remained pending for long, in that case for ten years, is no ground to entertain the same. 12. The star argument of the petitioner on merits is that benefit of exemption under heading 84.36 was given to M/s Weld Fuse Pvt. Ltd., Hyderabad and the appeal preferred by the Revenue namely Commissioner of Central Excise v. Weld Fuse Pvt. Ltd. reported as was dismissed by CESTAT, Bangalore on 27th October, 2006. It is further contended that the said order of CESTAT has not been challenged by the Revenue. 13. Though we fail to see as to why the petitioner inspite of claiming ....
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....al parlance as poultry keeping machinery parts only and no evidence has been placed on record to prove otherwise by the revenue. Hence, in view of the Hon'ble Supreme court judgment in the case of G.S. Auto International Ltd. v. Collector of C. Ex., Chandigarh wherein it was held that "It needs to be ascertained as to how the goods in question are referred to in the market by those who deal with them, be it for the purposes of selling, purchasing or otherwise", the classification under the said CHSH 8436 appears to be correct. The function of the impugned goods is only for poultry keeping, meaning rearing, feeding, cleaning, egg collecting and other functions, which are fulfilled in combination with other components such as feeders and egg collectors and hence, in accordance with the section notes 4 to Section XVI of the Central Excise Tariff Act, 1985 also, the impugned goods merit classification under CHSH 8436. 14. It would thus be apparent that while CESTAT, Bangalore in the aforesaid case observed that the goods are not items of general use and it was agreed before it that the goods are used only for making cages which are parts of battery, it is the admission of the....
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....es for filling the feeding troughs, cleaning the floors and collecting the eggs". 16. We are unable to agree with the reasoning aforesaid. It seems to have escaped CESTAT, Bangalore that when CHSH 8436 at page 1318 SHN referred to batteries it was in the context of large installations equipped with automatic devices for filling the feeding troughs, cleaning the floor and collecting the eggs. A manufacturer of such batteries which are not merely a series of cages but are also equipped with automatic devices as aforesaid would definitely qualify as machinery and the Wire mesh partition used in such cages would be part of machinery and would be exempt under heading 84.36. However a manufacturer of Wire mesh partitions and one of the uses of which Wire mesh partition may be for assembly as cages, cannot claim exemption under heading 84.36 (supra). 17. What is significant is that heading 84.36 refers to poultry keeping 'machinery'. A mere equipment or structure for poultry keeping would not qualify classification under heading 84.36. To fall under heading 84.36 the test, of being a machinery has to be satisfied. The Concise Oxford Dictionary 10th Edition defines 'mac....