TaxTMI 
TaxTMI 
1985 (6) TMI 185
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.... Central Excise Tariff. Appellants have claimed re-assessment of the goods on the ground that they cannot be assessed as motor vehicle parts and that, therefore, countervailing duty could not be charged in respect of them. 3. The case of the appellants is that what they have imported are I.C. Engine components. For purposes of payment of Customs Duty, they have been accepted as machinery parts and not as motor vehicle parts. Appellants have stated that they are, in fact, holding industrial licence for manufacture of I.C. Engines only and not for motor vehicles or motor vehicle parts. They have also urged that their products are predominantly stationary/industrial type of engines. 4. It is pointed out by the appellants that the question of correct classification of their own products, both for Excise Duty and Countervailing Duty, has come up for a decision before the Tribunal a number of times before and the following orders have been passed already in their favour - (1) Order No. B-59/83 (ECR April, 1983 355D). (2) Order No. 972/1983-B, dated 8-12-1983. (3) Order No. 750/1984 -B (ECR 1984 2716). (4) Order No. 67/85-B, dated 31-1-1985.....
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....uty under the Excise is dependent on considerations arising out of the provisions of the Excise Act and that classification of an article for purposes of levying of Customs Duty could not prevail for purposes of determining liabilty to Central Excise Duty. It is also submitted that as per the decision of the Supreme Court in the Dunlop India Ltd. case (1977 AIR S.C. 597), the end use of a product is not relevant unless this itself is expressly referred to in the relevant Tariff Entry. It is also submitted that the Customs Tariff has undergone a radical change with the adoption of the Customs Tariff Act of 1975, with effect from 2nd August, 1976. The decision of the Bombay High Court in the case of the appellants, being prior to this date, could not be considered as a precedent for deciding classification in respect of goods subsequently imported. Special emphasis has been laid on the fact that, in so far as countervailing duty is concerned, the competition is not between two specific entries relating to specific commodity Tariff Items but a specific commodity Tariff Item namely Central Excise Tariff Item 34A, relating to parts of motor vehicle, and a residuary Tariff Entry, Item 68....
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....tage and consign it to an orphanage of a residuary item". Considering the very nature of the product in question, namely stationary diesel engines and the predominant use of the parts imported, it is not possible to maintain that the goods are classifiable as motor vehicle parts. 11. Shri Rohatgi had also referred to the decision of the Bombay High Court in the case of Sainet Private Ltd. and Another v. Union of India and Another (1984 (18) E.L.T. 141), in which it was held that Item 68 of the Central Excise Tariff "is a house of the last resort". For the reasons that we have discussed above, this is a case where, in fact, recourse to the "house of last resort" becomes necessary because the specifically worded entries do not provide cover to the articles in question. 12. The Department has also cited the decision of the Madras High Court in the case of Lucas TVS Ltd.v. Union of India (1978 E.L.T. J711), if which it was held that the schedules to the Customs Tariff Act and those appended to the Excise Act do not have the same basis of classification and that provisions of Section 2 and 2(a) of the Tariff Act have to be read without reference to the other and also tha....
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....It would be seen that in coming to a decision we were guided by the classification for basic customs duty under ICT of engines as machinery not otherwise specified under Item 72(a) of the erstwhile Indian Customs Tariff on the basis of principal use. The next order 972/83-B which also related to a period when erstwhile ICT was in force followed the earlier decision in Order No. 59/83-B and for failure of the DR to distinguish the decision given by the Tribunal. The same is true of Order No. 750/84-B. 18. As for the appellants' reliance on principal or predominant use being the basis of classification and reliance on Annapurna Carbon Industries v. State of Andhra Pradesh - AIR 1976 SC 1418, I have carefully gone through the decision. The decision related to assessment of Arc carbons known as Cinema Arc carbons under Entry No. 4 of the 1st Schedule of the Andhra Pradesh General Sales Tax Act, 1957. The main discussion is to be found in paras 7 to 11 of the decision. The relevant entry fell in that part of Schedule in which description of goods to be taxed was indicated by the expression 'required for use therewith'. Para 8 of the decision would show that the first entry in th....