TaxTMI 
TaxTMI 
2015 (1) TMI 218
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....7 of CETA, 1985 reads as under 'Machines for cleaning, sorting or grading seed, grain or dried leguminous vegetables; machinery used in the milling industry or for the working of cereals or leguminous vegetables, other than farm-type machinery'. The specific tariff item 8437 10 00 in which the assessee has classified the impugned goods reads as under 'Machines for cleaning, sorting or grading seed, grain or dried leguminous vegetables. 2.1 The Chapter subheading 9406 covers 'prefabricated buildings'. As per the note 4 of Chapter 94, 'prefabricated buildings' means buildings which are finished in the factory or put up as elements, presented together, to be assembled on site, such as housing or worksite accommodation, offices, schools, shops, sheds, garages or similar buildings. 2.2 The findings of the Commissioner in the impugned order to justify the stand taken by the Revenue are as under: Silos manufactured and cleared by the assessee are classifiable under Chapter sub-heading No. 9406 00 99 of the CETA, 1985. * As per the product brochure published, the assessee is manufacturing varieti....
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....h as silos are also cleared to the customers without any pre-cleaners, fine cleaners etc., since these are optional items which can be customized depending on the requirement of the customers. * As per Rule 3(a) of General Rules of Interpretation of the First Schedule to the Central Excise Tariff Act, 1985, it is clear that the silo in general being in the nature of pre-fabricated building (essential character) and functionally used for housing or storage are specifically covered under Chapter heading No. 9406 of CETA, 1985. In the case of Commissioner of Central Excise, Ghaziabad v. International Tobacco Ltd, 2009-TIOL-11-SC-CX, the Apex Court has held that 'for classification, the basic character, function and use is more important than the name used in trade parlance'. Therefore, the Learned Commissioner finds that the 'basic character' of the silos manufactured by the assessees is that it is a 'Pre-fabricated building' since the assessees fabricate the whole 'silo' in the factory and thereafter the same is installed at the customer site. Secondly, the 'basic function' of the 'silo' manufactured by the assessees is that it acts essenti....
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.... used in the milling industry. * The Appellant has been consistently declaring the manufacture and clearance of the subject goods rightfully classifying them as 'agri processing machines' based on the bonafide belief that subject goods being machinery used in milling industry can be termed as such. Therefore rendering the classification of the said goods under CETH 84.73 as correct and proper. * The silo's manufactured by the Appellant are similar to that considered in the Thermax judgment. Therefore the said judgment will continue to apply to the case of the Appellant as well and the classification under heading 84.37 claimed by the Appellant is tenable in law. The Thermax judgment has not been reversed till date and the same holds the field even today in so far as the classification of Grain Silo systems is concerned. The said judgment squarely applies in situations where the silos are cleared with various forms of machineries. * It is possible to order pre cleaners separately and not with the silos that the appellant clears usually....
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....ed/constructed by the appellant on the customers site. In fact the process only results in a construction of a civil structure which becomes an immovable property/capital asset in the form of a complex system of machinery and it therefore not an excisable goods at all as the impugned goods are formed at site and becomes an immovable property as held in the case of Thungabhadra Steel Products v. Union of India, 1998(98) ELT 334 (Kar). * It is impossible to dismantle the silo without any damage. The decision of the Honorable Apex Court in Triveni Eng. & Indus Ltd v. Commissioner of Central Excise 2000 (120) ELT 273 (SC). Para (e) of CBEC circular No. 58/1/2002-CX., dated 15th January, 2002 also supports the said contention. * The Appellant disowns any such brochure mentioned/reproduced certain contents at Para 15.1 and Para 22.1 on the findings. In any case neither does the SCN nor does the Appellants reply relies on any such brochure. 3.1 In addition to the above, the learned counsel also filed a miscellaneous application for additional grounds of appeal wherein the fol....
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....ading 8437 1000. In Para 16.1, 16.2 and 16.3, the O-I-O has directly referred to sub-headings 84371000 and 94060099 that belong to two different Chapter Headings. * It would have been appropriate that the Respondent would have evaluated the classification of Silos manufactured by the Appellant as per 4 Digit Chapter Heading of 9406 and thereafter determined the sub-heading. A comparison at a sub-heading level is possible only if there is an anomaly in classification within a Chapter Heading. 4. After hearing both the sides and considering all these submissions, we came to the conclusion that it would be appropriate to remand the matter at this stage itself even though in respect of the very same product this Tribunal vide Stay Order No.1180-1182/2012 dated 5.7.2012 had taken a view that the appellant has to deposit the amount that may be payable during the normal period. The learned AR submitted that there is no reason why this order should not be followed. In the normal course this would have been the approach followed by us and in fact we would have also not heard the party in great detail. The learned counsel pressed that he has....