At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Bangalore
By, THE HONORABLE JUSTICE: S.S. GARG
By, MEMBER AND THE HONORABLE JUSTICE: ASHOK K. ARYA
For Respondents: Madhupsaran, Asstt. Commissioner (AR)
1. These two appeals have been filed by the appellant directed against the impugned order dated 24-9-2007 passed by the Commissioner (Appeals) wherein the Commissioner (Appeals) has rejected the appeal of the appellant and upheld the order-in-original. Since identical issue is involved and the impugned order is also common, both the appeals are being disposed of by this order.
2. Briefly the facts of the present case are that the appellants are engaged in the business of roasting and marketing of filter coffee under the name of Bayer's coffee. The appellants had imported goods viz. probat Roasting unit Model 1-P from M/s. Probat-Weke, Germany and sought classification of impugned goods under Chapter Heading/CETH 8516 79 90 and claimed exemption benefit provided at Sl. No. 252A S. No. 1 (ii) of List 32A of the table annexed to Notification No. 21/2002 dated 1-3-2002 read with Notification No. 6/2006, dated 1-3-2006 (Sl. No. 10 of the table annexed to Notification No. 6/2006 ). As per the first check examination, the goods were found to be as per the declaration. As per the Technical manual of the manufacturer, the goods imported is shop Roaster type L-25 Gas Fired for roasting coffee in batches of 12 to 25 kgs. and is meant for roasting and cooling coffee, in batches. Electricity is used only for rotation of the drum while roasting the coffee beans. Heating and roasting of coffee beans is done by using gas and not by using electricity. The classification sought by the appellants by declaring the impugned goods, in Bill of Entry No. 364211, dated 13-2-2007, under CTH/CETH 8516 79 90 was denied so also the benefit of Notification No. 21/2002-Cus., dated 1-3-2002 Sl. No. 252A Sl. No. 1 (ii) of list 32A since the goods imported are rightly/appropriately classifiable under CTH/CETH 841981.90 "as other machinery and equipment". Aggrieved by the Order-in-Original, the appellant filed the appeal before the Commissioner (Appeals) who rejected the appeals. Hence, the present appeals.
3. Heard both sides and perused records.
4. None appeared on behalf of the appellant in spite of notice. Since the appeals pertain to the year 2008, we proceed to decide the same on the basis of grounds of appeal and other materials available on record.
5. In the grounds of appeal, the appellant has submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the factual and legal position. It has been submitted by the appellant that the goods imported by them were classifiable under CTH 8516 79 90 and claimed benefit of concessional rate of duty under Notification No. 21/2002, dated 1-3-2002 provided at Sl. No. 1(ii) of List 32A, Sl. No. 252A of the Table annexed to the said Notification. Whereas the Department has assessed the impugned goods under CTH 8419 81 90 and denied the benefit of concessional rate of duty provided under Notification No. 21/2002, dated 1-3-2002. It has also been submitted in the grounds of appeal that Sl. No. 252A of Notification No. 21/2002-Cus., dated 1-3-2002 stipulates concessional rate @ 5% for goods falling under Chapter 84 or any other Chapter for use in the plantation sector and Sl. No. 1(ii) of List 32A refers to coffee roasting machine intended for industrial use. It has also been stated in the grounds that the machine imported by the appellant is a coffee roasting machine for industrial use only and classifiable under Chapter Heading 8516 79 90 and eligible for exemption. But the same has been denied by both the authorities by wrongly classifying the impugned goods.
6. On the other hand, the Learned AR defended the impugned order and submitted that the Commissioner (Appeals) has considered all the issues raised by the appellant and has rightly classified the impugned goods under Chapter 84 thereby denying the benefit of concessional rate of duty under Notification No. 21/2002, dated 1-3-2002. He further submitted that as far as classification issue is concerned the Learned Commissioner after considering the submission of the appellant and after going through the Chapter heading 85 along with explanatory notes has clearly held that the said heading covers only electro-thermic appliances of a kind used for domestic purposes and not for appliances/machines where the heating is not done by way of electricity and which are in the nature of machines for industrial use. Further the Commissioner (Appeals) has observed that as per the technical manual of the manufacturer, the item is 'shop Roaster Type L5 GAS Fired for roasting coffee in batches of 5 to 12 kgs. Therefore, the Commissioner (Appeal) has held that the same cannot be considered as electro-thermic appliances and therefore cannot be classified under the heading 8516 and accordingly he classified the impugned goods under Chapter 8419. Further the Commissioner (Appeals) has also discussed in the impugned order as to why the impugned goods should fall under 8419. Further the Learned Commissioner has also discussed regarding the eligibility of concessional rate of duty provided under Notification No. 21/2002, dated 1-3-2002 and has observed as under:-
Goods and machinery or equipments specified in Sl. No. 252A, for use in the plantation sector as mentioned under list 32A of the table annexed to Notification No. 21/2002-Cus., dated 1-3-2002 are eligible for concessional rate of duty @ 5% BCD. No doubt the impugned goods meant for coffee plantation sector would fall under Chapter 84 or any other Chapter; as envisaged at Sl. No. 252A, but it should also confirm with the description of goods i.e. coffee roasting machine provided under Sl. No. 1(ii) of list No. 32A and satisfy the classification of specific Tariff heading. As seen, Sl. No. (ii) not only describes the goods but also specify the tariff heading under which such goods would fall. Thus, the notification provides concessional rate @ 5% to coffee roasting machine intended for industrial use falling under Chapter Heading 8516 79 90. Since the impugned goods do not fall under Chapter Heading 8516 79 90 as they are rightly classifiable under 841931.00, they are not covered under Sl. No. 252-A, 1(H) of list 32A of the Notifications No. 21/2002-Cus., dated 1-3-2002. Hence the ben
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efit of exemption cannot be extended to the impugned goods, due to its classification. Therefore, I hold that the lower authority's decision is fair and just and does not call for any review. 7. After considering the grounds of appeal and the submissions of the Learned AR and perusal of the impugned order, we find no infirmity in the impugned order which has been passed by the Commissioner (Appeals) after considering all the grounds raised by the appellant. Further we find that the Commissioner (Appeals) has rightly classified the coffee roasting unit using gas as the heating medium under heading 8419. Therefore, we uphold the impugned order by dismissing both the appeals of the appellant.