2017 (5) TMI 1434

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....%+0%+3%+3%+4%. Accordingly they paid the customs duty and cleared the goods without assessment and exemption under RMS. Subsequently on post-audit verification, the Department was of the view that the imported goods are rightly classifiable under CTH 8479 89 99 and liable to payment of customs duty @ 7.5%+14%+3%+3%+4%. The differential duty amounting to Rs. 45,06,821/- with applicable interest was demanded and the same was confirmed in the impugned order dt. 20/10/2011 by the Commissioner of Customs, Cochin. Aggrieved by the impugned order, the present appeal has been filed. 2. With the above background, we have heard the learned counsel Shri N. Anand appearing for the appellant as well as Shri Parashiva Murthy, Authorised Representative....

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.... Ltd. & Madras Rubber Factory Ltd. Vs. UOI & others [1983(13) ELT 1566 (SC)] ii. Chetna Polycoats (P) Ltd. Vs. CCE [1988*37) ELT 253 (Tri.)] 4. Learned AR on the other hand supported the impugned order. He submitted that the machinery imported by the appellant is meant for use in industrial production i.e. for 500 TPD cattle feed plant. He submitted that such machinery will not be classifiable under 8436 and has been rightly classified under 8479. 5. At the outset, we give below the two competing customs tariff headings:- Tariff item Description of goods Unit Rate of duty 8436 OTHER AGRICULTURAL, HORTICULTURAL, FORESTRY, POUTLRY-KEEPING OR BEE-KEEPING MACHINERY, INCLUDING GERMINATION PLANT FITTED WITH MECHAN....

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.... with mechanical or thermal equipment, poultry incubators and brooders. In the impugned order, the learned Commissioner has ruled out classification of the goods under 8436 by referring to HSN explanatory notes. The appellant has vehemently argued before the learned Commissioner as well as before the Tribunal in the present proceedings that HSN explanatory notes has, at best, only a persuasive value. They have relied upon several decisions which also lay down the same law saying that the HSN explanatory notes have no statutory force since they are not part of the tariff schedule. The appellant has also argued that the entry under 8436 10 00 which covers machinery for preparing animal feeding stuff should cover the goods under import. 8. ....

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.... The imported machinery is meant for a cattle feed manufacturing plant with the capacity of 500 TPD. The sub-heading 8436 10 claimed by the appellant is meant to cover machinery only for preparing animal feeding stuff and cannot be enlarged to include a 500 TPD cattle feed manufacturing plant. Hence, we are of the view that the entry under which classification is sought by the appellant does not cover the goods under import. 9. Next, we turn to the question what would be the appropriate classification. The impugned order classified the goods under CTH 8479. This heading is applicable for machines and mechanical appliances having individual functions and not specified elsewhere in the chapter. Since the imported machines are capable of pe....