TaxTMI 
TaxTMI 
2001 (11) TMI 110
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....the order of Commissioner (Appeals). 2.The subject 'gears and shafts' being manufactured are being used solely and principally in power tillers is not disputed. The learned Assistant Commissioner on the following grounds confirmed the classification under Heading 8483. (a) that as per Rule 173B of CER, 1944, in case a fresh declaration/ amendment has to be filed, the same shall be filed within 30 days and the proper officer may conduct enquiry about the classification declaration. Hence, it is obvious that the intention of the rule is to require assessee to file declaration before production or before making any alteration in the particulars to be incorporated in the classification declaration and it is not open to the assessee to come after one year and claim modification with retrospective effect. (b) the assessees have placed reliance on Section 2(b) of Sec. XVI by over looking Section 2(a) of Sec. XVI of CER, 1944. (c) the reliance placed on Board's Circular 17/90-CX. 4, dated 9-7-90 which has been notified vide Trade Notice 145/90 of Bangalo....
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....s not specify anywhere that Chapter Note 8483 or any other item covered under Chapter 84 are for general use. 4.The present appeal is filed on the grounds :- (i) The gears and shafts are not for general use but have specific use and are intended to be used solely and principally in power tillers. Therefore, they fall outside the heading 8483.90, since power tiller is agricultural machinery falling under 84.32 and there is no separate entry for parts of 84.32. Thus gears and shafts would fall under Heading 84.32. (ii) Alternatively, the goods should fall under 8424.91 which read as follows :- Duty 8421.10 Mechanical appliance of a kind used in agriculture or horticulture NIL Parts : 8424.91 Of goods covered by sub-heading 8424.10 NIL (iii) Since at no point of time, the items under 8424.91 attracted Central Excise duty, the demand is not maintainable. (iv) The Commissioner (Appeals) holding that Section note 2(b) and 2(c) of Section XVI is inapplicable since Section no....
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.... 5.When the matter was heard - (a) The learned Advocate relied upon the decisions reported in [2000 (120) E.L.T. 648 (T) = 2000 (40) RLT 641, 2000 (118) E.L.T. 119 (T) = 1997 (23) RLT 379 (E.R.), 1990 (46) E.L.T. 68, 1994 (74) E.L.T. 599, 1993 (67) E.L.T. 134, 1998 (27) RLT 344] and Board's clarification - [1990 (49) E.L.T. T 90] and Final Order No. 1407/98, dt. 24-7-98 in appellant's own case and reiterated the grounds in appeal. (b) The learned SDR drew our attention to HSN section notes and heading notes under the relevant entries and submitted that the rules for classification of parts under Chapter 86 of Section XVII and under rules for parts of Chapters 84 and 85 of Section XVI of CETA 85, are not the same. The parts here are to be classified under Section note 2 to Section XVI. She drew out attention that the Commissioner has distinguished the decisions and the Board's instructions relied upon by the appellant. She supported the order of Commissioner (Appeals) and requested for dismissal of the present appeal. 6.We have considered the submissions and find :- (a) &....
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....r :- PARTS "Subject to the general provisions regarding the classification of parts (see the General Explanatory Note to Section XVI), the heading covers parts for the above-mentioned machines. Such parts include, inter alia: Plough beams, coulters, shares, mould boards, plough discs (including diamond-edged shares, discs, etc); tools and teeth (rigid or springy) for scarifying, cultivating or weeding machines; teeth, drums and discs for harrows; cylinders, segments and parts of rollers; distributing mechanisms for fertilizer distributors, seeding, planting or transplanting machines; shares, teeth, discs and other tools for hoeing machines." While for 84.24, the HSN heading provides that "it covers machines and appliances for projecting, dispersing or spraying steam, liquids or solid materials (e.g., sand, powders, granules, grit or metallic abrasives) in the form of a jet, a dispersion (whether or not in drips) or a spray." Therefore, Heading 8424.10 of CETA, 1985 i.e. for mechanical appliances of a kind used in agriculture or horticulture cannot cover parts of power tillers as is being argued by the appellants since power tillers themselves will not be covered under 8....