TaxTMI 
TaxTMI 
2017 (6) TMI 463
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....ellant is manufacturing Welded Wire Mesh and Poultry Keeping Machinery parts. Welded Wiremesh has been cleared by the appellant by classifying under Chapter Heading 73 on payment of duty thereon but the Poultry Keeping Machinery parts namely Poultry Top, Poultry Bottom, Poultry Partition, Battery Cages etc. have been classified by the appellant under Chapter Heading 8436 and cleared without payment of duty on these items. As appellant is not maintaining separate account of input/input services, the appellant was paying an amount of 10% of the value of said clearances. The Revenue is of the view that said item are classifiable under Chapter Heading 73 of Central Excise Tariff Act. Therefore, the proceedings were initiated against the appella....
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.... be dismissed. 5. In rebuttal to the argument advanced by the Ld. AR., the Ld. Counsel submitted that the decision of the Hon'ble Delhi High Court in the case of Arza Poultry Equipment (supra) was challenged before the Hon'ble Apex Court reported in - 2015 (323) ELT A21 (SC) wherein the Hon'ble Apex Court has remanded matter back to the Ld. Commissioner (Appeals) to decide the correct classification without influence of the observation made by the Hon'ble Delhi High Court and thereafter, he submitted that in the case of Shiva Poultry Equipments (supra), this Tribunal has consider the issue in detail and held that correct classification is 84369100. 6. Heard the parties and considered the submissions. 7. As the items in dispute are ....
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.... as poultry keeping machinery. We further note that in the 8 digit classification, since the subsequent Entry No.8436 specifically included in the parts of the poultry keeping machinery, the Hon'ble Delhi High Courts decision may not be applicable to the new tariff entry including parts. We also note that this decision of Delhi High Court was challenged before the Hon'ble Supreme Court by way of filing SLP and the Apex Court vide its order dated 23-07-2012 [Azra Poultry Equipments Vs. Union of India - 2015 (323) ELT A21 (SC)] allowed the SLP to be withdrawn, so as to pursue the matter with the Commissioner (Appeals) and directed that the Commissioner (Appeals) will considered the case on its merit uninfluenced by any observation by the Delh....
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.... in facts or in legal position are required. It is seen that Hon'ble Delhi High Court has decided a similar issue in respect of Azra Poultry Equipment [2012-TIOL-287-HC-Del-CX]. In the said order, Hon'ble High Court of Delhi held that wire mesh manufactured by the petitioner even if sold to poultry farmer for assembling cages for poultry or battery of such cages cannot quality as machinery under heading 8436 and would be an article of iron and steel wire within the meaning of heading 7314. This decision was passed after examining the above mentioned CESTAT order. However, M/s Azra Poultry Equipments filed an SLP and Hon'ble Supreme Court vide order dated 23-7-2012 allowed the withdrawl of the said SLP to pusue the matter with Commissioner (....
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....ent 'u' unit is mentioned indicating thereby that in respect of parts of poultry incubators and broodes, the standard unit is 'kilogram'. The standard unit is indicative of the nature of product. In the case, it is not individual part of machinery but wire mesh. The HSN Explanatory Note for poultry keeping machines, incubators and broodes specifies batteries, large installations equipped with authomatic devices for filling the feeding trays, clearing floors and collecting eggs. The installation is very large and wire mesh supplied by the assessee forms part of said batteries which are attached to various other mechanical devices to make a functional poulty keeping machine. Since the claim of the assessee is only to classify ....