2019 (11) TMI 948

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.... these goods under heading No. 8437 as "machinery used in Milling Industry" where the tariff rate is nil, but the department these goods are classifiable under heading No. 8428, as "other lifting, handling, loading or unloading machines (for example Lifts, escalators, conveyors etc."). On the basis of this, the impugned order was passed, classifying the goods under Heading No. 8428 and alongwith interest and imposed penalty under Section 11 AC of the Act. Against the said orders, the appellant are before us. 3. The Ld. Counsel for the appellant submits that the similar case came up before this Tribunal in the case of Alpsco Graintech Pvt. Ltd. and Annapurna Agronics machinery Pvt Ltd. wherein vide final order No. A/63373-63375/2018 dated 2....

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....gs u            12% 8428 10 19 Other   12% 8428 10 20 Skip hoists u 12% 8428 20 Pneumatic elevators and conveyors:       Conveyors:     8428 20 11 Belt conveyors u 12% 8428 20 19 Other u 12% 8428 20 20 Pneumatic elevators u 12%   Other continuous-action elevators and conveyors, for goods or materials:     8428 31 00 Specially designed for underground use u 12% 8428 32 00 Other, bucket type u 12% 8428 33 00 Other, belt type u 12% 8428 39 00 Other u 12% 8428 40 00 Escalators and moving walkways u 12% 8428 60 00 Teleferics, chair-lifts, ski-raglines, tract....

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.... 6 of the Central Excise Tariff Act which are expected herein below:- 3. Unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function. 4. Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in Chapter 84 or ....

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.... used for milling industry. The Central Excise Tariff is clear with respect to this aspect that the said machines if supplied as a combination of machines would be covered under the main heading 8437, therefore, the reliance on the explanatory note to HSN is not warranted as the HSN explanatory note is not a law but are they are only guiding factor for classification when the section note to the Central Excise Tariff is clear on the aspect wherein it has been clarified that the said items are to be classified under the main machine. Therefore, the department cannot place reliance upon the explanatory notes to change the classification of the said items. 7. We further take a note of the fact that in the case of Commissioner of Central Exci....

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....nts for use exclusively in rice milling industry classifiable under chapter heading No. 8437. Admittedly, in this case, these conveyors and elevators are specifically used for rice milling industry as the part of the composite machinery of rice milling, therefore, having merit classification under chapter heading No. 8437. 8. We have also gone through the decision of the Hon'ble Apex Court in the case of G. S. Auto International Ltd. (supra) wherein the Hon'ble Apex Court observed as if the items specifically made for specific machine would be classifiable as part of the said machine and not under the general heading. Admittedly, in the case in hand, the conveyors and elevators are for specific use of rice milling industry and nowhere el....