TaxTMI 
TaxTMI 
2019 (4) TMI 584
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.... September 2009 1,01,81,678 No. 40/2010 dated 23.11.2010 E/474/2011 October 2009 - July 2010 1,41,70,486 No. 41/2010 dated 23.11.2010 E/1138/2012 August 2010 - June 2011 1,60,93,682 No. 8/2012 dated 31.01.2012 E/26726/2013 July 2011 - March 2012 3,08,84,739 No. 19/2013 dated 28.02.2013 E/21674/2015 April 2012 - February 2013 2,67,87,315 No. 05/ATT/COMMR/ B1/2015 dated 31.03.2015 E/21772/2015 March 2013 - May 2013 81,55,776 No. 06/ATT/COMMR/ B1/2015 dated 31.03.2015 E/20275/2016 June 2013 - March 2014 96,86,167 No. BLR-EXCUS-005-COM-08/15-16 dated 30.11.2015 E/20276/2016 April 2014 - December 2014 98,95,151 No. BLR-EXCUS-005-COM-09/15-16 dated 30.11.2015 The issue involved in all these appeals is the classification of "galvanized silo storage systems" manufactured by the appellant. The appellant is contending that the goods are rightly classifiable under subheading 8437 1000 of the Schedule to the Central Excise Tariff Act, 1985 as "machinery used in milling industry". The Revenue, on the other hand, has taken the stand that the goods are classifiable under heading 9406 0099 as "prefabricate....
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....as submitted with the support of invoices raised by the competitors that the same type of systems are being classified under CETA 8437 1000 and are being cleared without payment of duty. We feel that this is an important aspect which requires consideration. The duty element can make a substantial difference to the capacity to compete by an assessee and therefore, similar products should get similar treatment. (iii) In fact even the Commissioner has distinguished the decision in the case of Thermax Ltd: 1996 (81) ELT 417 (Tri.) holding that in the Thermax Ltd. case the assessee had catalogue which showed that the said silo had multiple devices attached to the storage system and therefore, had multiple uses. However, in this case, he has not discussed the catalogue or brochures of the assessee." 2.1 It is also to be recorded that various appeals filed before this period continue to be pending in this Tribunal. The de novo adjudication for the period April 2012 to February 2013 was completed by the Commissioner by issue of order NO.5/2015 dated 31.3.2015. in the de novo proceedings, the Commissioner ordered classification of the impugned goods under chapter subheading 9406....
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.....G. Shirke Construction Technology Pvt. Ltd., do not indicate the CETH, however, the RTI response states that silos are classified under CETH 8437. Just because in some Commissionerate the classification is being wrongly done, there is no necessity for the Department to err and copy the same but it is an opportunity to rectify the malady. The remedy lies in making good the errors occurring in the classification of the goods by classifying them in the specific heading prescribed in the Tariff. In fact, it would not be out of place to go a step further to suggest that a pointer be sent to Pune Commissionerate to re-classify the product correctly as there is a specific heading covering the same. Basically, B G Shirke is a construction company and why the Pune Commissionerate has chosen to allow the classification of the product under CETH 8437 is not known and Silos are not the kinds of products which require chemical examination since they are huge Silos and especially when a specific heading exists in the Tariff. In respect of Rostfrei, the assessee has not furnished any documentary evidence wrt to the classification. However, it is once again reiterated that when the assessee have ....
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....chinery for fine cleaning, and storage. c. The Chartered Engineer's Certificate provides for a detailed explanation of the description and function/usage of the product, as available on page 14 of the paperbook to E/21674/2015 against Order-in-Original No. No. 05/ATT/COMMR/ B1/2015 dated 31.03.2015, as detailed below: "Description and Features of the Silos manufactured Silos manufactured by the Appellant and sought to be procured by the customers are equipped with pre-cleaners, fine-cleaners, de-stoners, conveyor belt/ chains, elevators, temperature and level sensors, temperature controllers, aeration system etc. Thus, the silos are not mere storage structure as alleged in the SCN, but a complete and a complex machinery system consisting of equipment and machinery for fine cleaning and mechanized storage. In order to substantiate this, detailed description of basic characteristics, usage and function of its Galvanized Silos Storage System as follows: Characteristics: Appellant offers the best and safest solution for mechanized storage & handling of grains, cereals & other commodities and challenges the other methods of storage in gunnysacks, concrete structures an....
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....material contained in such systems. Appellant is involved in manufacture of mechanized food grain handling and storage systems which is a mechanized storage solution and is used for storage of grains. In addition to the same, Rule 3 begins on the note that if the goods are classifiable under two headings under Rule 2(b), then the classification may be resolved by application of Rule 3. However, since Rule 2 is not applicable, Rule 3 which clarifies the issue on classification when the goods fall under two headings as per Rule 2(b) is also clearly not applicable in case of the Appellant. It is also submitted that comparison at sub-heading level permissible only within a Chapter Heading. (c) Silos manufactured by the Appellant are machinery classifiable under Chapter 8437 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. (d) It is also submitted that as per the Notes....
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.... tariff items, resort cannot be had to the residuary heading. (j) Silos manufactured and cleared by the Appellant do not fall under the residuary Chapter sub-Heading 94060099 The basic character, function and use of the SILO as a prefabricated building functioning as a storage device used for storing grains in as much as such an opinion has been formed without appreciating the silo storage system in its entirety and ignoring the write up provided by the appellant. Such a contention is totally contradictory to the chapter note 4 of Section XX of the Central Excise Tariff Act, 1985. (k) Goods cannot be classified under residuary entry when there is a more specific heading of 8437. Reliance is placed on Apex court's judgment in Mauri Yeast India Pvt. Ltd. v. State of U.P. 2008 (225) ELT 321 (SC) which states that if there is a conflict between two entries one leading to an opinion that it comes within purview of tariff entry and another the residuary entry, the former should be professed. (l) Silo is not finished in the appellants factory nor are they put up as elements, presented together, to be assembled on site. It is quite evident that silos are erected/constructed by ....
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....lling industries. Further, when the demand itself is based on an audit of the Noticee's records, no allegation of suppression can be made. Reliance is placed on CCE, Bangalore v. Pragathi Concrete Products (P) Ltd. 2015 (322) ELT 819 (S.C.). (q) The Appellant also submits that no penalty is imposable in case of classification disputes. (r) Benefit of CENVAT Credit available, assuming Excise Duty is leviable on manufacture of Mechanized food grain handling and storage systems. A Chartered Accountant's certificate to this effect is submitted. (s) It was submitted on behalf of the appellants that the Commissioner has grossly erred in rejecting the classification of the production under CETH 8437 1000. The show-cause notice proposed the classification under 9406 0099, however, the Commissioner has ordered the classification under 9406 0093 which was not as per the show-cause notice. He observed in para 16.18 as follows: "16.18 From the foregoing discussion, it can be seen that the assessee have themselves drawn by conclusion that the product manufactured by them is rightly classifiable under 94060093 and as the product manufactured by the assesse has a clear, unambiguous an....