TaxTMI 
TaxTMI 
2005 (7) TMI 239
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.... Ringer Crane with spares in Chapter 8426.19 and 8 nos. SPMTS with 6 Axle and with 5 power packs in Chapter sub-heading No. 8704.90 enhancing the value of Platform Ringer Crane and SPMTS and denying the benefit of exemption under Notification No. 11/97 as amended by Notification No. 55/97. Respondent(c) preferred an appeal before Commissioner (Appeals), Central Excise & Customs, Ahmedabad. (d) Commissioner (Appeals) ordered that "the value declared in the invoice is true and fair under Section 14 of Customs Act, 1962. The differential duty worked out in the present case based on the final assessment on the Bill of Entry is not sustainable. 'The final assessment made on the Bill of Entry stands modified and the appeal is allowed." Hence this appeal. 1.3Brief background, as urged by Revenue in this case is - (i) "The value declared by the importer in the bill of entry was ingenuine and inadequate inasmuch as three invoices No. 001, 002 and 003 all dated 3-1-1997 accompanied the imported goods indicated that the value shown therein was for 'Customs Purpose Only'. In other words the three invoices raised for the said goods wer....
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....ding i.e. 8704.90 of the Customs Tariff Act, 1975. Therefore, the 8 Nos. SPMTS with five nos. power packs being classifiable under sub-heading No. 8704.90 of the Customs Tariff are excluded from the purview of exemption Notification No. 11/97-Cus., dated 1-3-97 as amended by Notification No. 55/97-Cus., dated 13-6-97 as the same was not appearing in the list annexed to the said Notification. Accordingly Customs Duty as applicable to sub-heading No. 8704.90 of the Customs Tariff read with Notification if any, would be leviable on the said SPMTS (Trailers) with power packs. (iv) The Machinery expert submitted his further report on 24-5-1999 after examining the valuation aspect of the goods i.e. "Heavy-Duty Platform Ringer Crane", in detail. It was then observed that the value declared for the subject Crane imported at Sikka with 8 Nos. SPMTS (Trailers was US Dollar 3484500 CIF equivalent to Rs. 53,58,95,500/- whereas the value noticed for similar 8 Nos. SPMTS of 1994 make without Crane, imported at Jawahar Custom House vide Bill of Entry No. 490 dated 4-2-1997 was DFL 60,00,000 equivalent to Rs. 11,86,20,200/- in the year of manufacture. Therefo....
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....herefore be justifiably adopted for the Crane imported by M/s. Reliance Petroleum Ltd. at Sikka, along wish 8 nos. SPMTS with necessary deduction and depreciation in value. Accordingly the value of Crane stand alone Crane has been work out to Rs. 38,36,80,000/- and the value of 8 nos. SPMTS with five nos. power packs has been arrived at DFL 2373300 equivalent to Rs. 4,58,04,690/- (@ 1 DFL=Rs 19.30) 1.4Grounds taken in this appeal are :- 1. It is not correct to say that the lower authority (the authority who is empowered to finally determine the amount of duty specified in the notice issued under Section 28 of the Customs Act, 1962) would have said the same thing which has been enumerated in the show cause notice issued by the lower authority as the issuing authority is a Superintendent of Customs House, Sikka is different than the adjudicating authority which is the Deputy Commissioner of Customs, having his office at Jamnagar. The party in their Memorandum of appeal have admittedly stated that they have received a show cause notice from the lower authority (and not an order confirming the demand) and still preferred to plead th....
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.... some device to move the same is required to render mobility to it and therefore, Hon'ble Commissioner (Appeals) contention that the M/s. RPL has imported Heavy Duty Platform Ringer Mobile Crane and Grove MZ 20 sky worker Mobile Crane is far from facts of the case. 2.3 While the Crane imported by the appellants is admittedly a platform ringer crane, the same cannot by any stretch of imagination be considered as mobile crane nor be called as such, in common trade parlance as the operational features of the crane imported by the parties are not linked with its mobility. 2.4 The 8 (eight) numbers SPMTs (Self Propelled Modular Transporters) merely play the role in moving the platform ringer crane from one place to other by simply placing the trailers under the ring base by raising the parking pads, without affecting the operational efficiency of the crane, in any way. 3. In para 3 Page 7 of the OIA Hon'ble Commissioner (Appeals) has placed reliance on the Hon'ble Bombay High Court's ruling in the case of M/s. Randeep Shipping and Transport Co. Pvt. Ltd., 1984....
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....e ratio of the above mentioned judgment is also not applicable to the present case as the present heavy duty ringer crane cannot move on the wheels and the trailors used to move this crane from one place to another are general purpose trailors and not the specifically strengthened axle and trailors. The crane has no tyre wheel base to render it mobility and when the trailors are out below the ring of the crane to move crane the crane cannot function i.e. it cannot lift any load. Further the trailors cannot take the full load of the crane. Before moving the crane the load and ballast of up to the 1500 ton is to be removed from the ring of the crane. 4. As per para 7, the contention of the Commissioner (Appeals) that the parties have imported mobile crane technically known as heavy duty platform ringer mobile crane and groove MZ 90 sky worker mobile crane is incorrect inasmuch as all the technical literature as per annexure A. The contract between the M/s. RPL and suppliers M/s. Europa RV describes it as platform twin ringer heavy duty crane. Nowhere, except the bill of entry and the invoice the word mobile crane is mentioned. Even t....
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....by the party for the transportation of heavy equipments are altogether different commodity in common parlance, commercial parlance, and in its technical meaning. Therefore, the said two units can in no way be classified under Chapter sub-heading 84.26 and are rightly classifiable under Chapter sub-heading No. 8426.19 (Crane) and 8704.90 (SPMTs). 7. The platform ringer crane imported by the parties is not capable of moving itself with its own motive power for enabling it to move over wide areas, without the support of 8 nos. SPMTs of 6 line trailors. It is also an admitted fact that the platform Ringer Crane cannot perform while it is mounted on the 8 nos. SPMTs. 8. As per para 9 of the OIA passed by Hon'ble Commissioner (Appeals), Ahmedabad 8 SPMTs are integral part of platform Ringer Crane but as discussed in above paras, SPMTs are manufactured by different company they have been manufactured in the different year and they are not a part of the crane as discussed above. So their classification is to be done under 8704.90. Further as per the judgment cited in the OIA, if the cranes....
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....ocess and tansfer of goods in finished products. In common parlance, the material handling equipments would be different from the construction and erection machinery. Such a heavy piece of equipment which is used for installation of heavy machinery is to be classified as construction and erection machinery and not as materials handling equipment. 11.1 Regarding the para 11 of OIA and as regards the valuation, the machinery expert appraiser has given the valuation of crane and SPMTs separately which is correct as discussed above as they are separate items. 11.2 The machinery expert has decided the value of the goods as per Rule 8 of the Customs Valuation Rules since, no transaction value was available and no import of similar goods in case of ringer crane was available. Since, the value declared in the invoice is for the Customs purpose only and no transaction of foreign exchange at the invoice value took place so the declared value under Section 14 of the Customs Act, 1962 as per the invoice cannot be taken. The stand of Commissioner (A), Ahmedabad that there is no dispute nor any evidence that the appellants have remitted any e....
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.... berthed at Jetty which is declared as landing point and is the land mass of India. While in this case of M/s. RPL, transportation charges from anchorage point to Jetty is proposed to be added in assessable value. Therefore, ratio decidendi of Coromandal case would not be applicable in the case of M/s. RPL and transportation charges incurred for bringing the goods till the land mass of the country would be included in the assessable value and is not covered by landing charges as per Customs Valuation Rules, 1988. This issue was referred to the Board by head quarters wherein it was clarified that these charges are to be added to the assessable value. 15. On the basis of the above grounds, it is prayed that the OIA passed by the Commissioner (Appeals) may be quashed and set aside. 2.1After hearing both sides, and considering the material on record, it is found : (a) the Commissioner (Appeals) has entertained an appeal against an assessment made by the proper officer on a Bill of Entry on finalization of the same assessed provisionally and finding that the issues about which the assessment of the Bill of....
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.... 8426.41 - On tyres 8426.49 - Other - Other machinery : 8426.91 - Designed for mounting on road vehicles 8226.99 - Other The HSN notes for self propelled and other mobile machine provide that the heading would cover not only fixed or stationery machine (with certain exceptions referred to under the Notes), it would cover machines mounted on transport equipment of the type falling in Section XVII and also mobile machines whether or not self propelled. The notes provide that machines mounted on vehicles proper and used for lifting or handling are to be classified under Heading 86.04 when they are so mounted on wagons or trucks suitable for coupling to a train designed to run on a railway network of any gauge. Therefore, the railway breakdown cranes or crane, wagons or trucks for use of the railways or of loading and unloading depots would be covered under Heading 86.04 and self propelled vehicles for the servicing and maintenance of railway tracks would be covered under Heading 86.04. However, such of the lifting or handling machines even though mounted on trucks or platforms not meeting the specifications of rolling stock would remain classified....
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....unction, governed by one of the headings in Chapter 84, lifting special machinery in this case at different sides, then the whole folk to be classified in the heading appropriate to that function. Therefore, propelling base in this case which is presented as imported along with ringer crane cleared on the same BE, consisting of 8 haulage SPMTs in this case, are not elements presented separately for assessment in this case. They have been imported as a specific configuration set along with a Ringer Crane, platform etc. The words "presented separately" in the chapter note has to be interpreted "Imported independently of a lifting device of a crane" and not when the import is along with such lifting device of Crane and platform, it has to be placed under 84.25 to 84.30, when sought for assessment & presented to be cleared on same BE as a set. Chapter Note 3 to Section XVI would call for such a classification. The notes are being misread by Revenue. We find no reason to classify the propelling configuration platform of 8 SPMTs, separately, in this case, than the Ringer Crane. Classification has to be under Heading 84.26 & not under 8701 on the reasons as stated in the background of the....
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....or lifting will not disentitle it from being 'mobile'. (f) The ground taken of SPMTs have been assessed independently and cleared at Jawahar Customs House & used by same appellant in the setting up the refinery cannot induce us to order independent classification under Chapter 87 when the HSN notes are found to specifically provide for such a classification only when 'presented separately' at import & would call for an assessment in this case under 84.26. When such independent import or independent use of SPMTs at the Refinery in this case has not been proved and or alleged the classification at Jawahar Customs House does not induce us to depart from relying on HSN notes to arrive at a classification under Chapter 87. Just because Tyres are being assessed separately will not call for assessment of Tyres imported presented not separately but with CKD a Motor Vehicle will call for their assessment as Tyres, and not as Motor Vehicles under import. (g) The grounds taken by Revenue for proposing classification SPMTs are found to be in total disregard of the cannons of classification, HSN note....