ORDER
Jeet Ram Kait, Member (T)
1. This appeal is directed against the Order-in-Appeal No. 1-2 RA/CAL.II/2001, dated 13-3-2001, by which the ld. Commissioner (Appeals) had upheld the order of the original authority in its entirety.
2. Ld. Advocate, Shri K.P. Dey, appearing on behalf of the appellants, submitted that they have cleared complete machinery and since the size of the machine was big, they had cleared the same in CKD/SKD conditions to both the customers. In this connection, he invited our attention to the judgment rendered by the CEGAT, New Delhi in the matter of Bhilai Engineering Corpn. Ltd. v. Commissioner of Central Excise, Raipur reported in 2000 (120) E.L.T. 91 (Tribunal) in which the Tribunal has held that roller tables and mould oscillators are not casting machines themselves but parts of the complete continuous casting machines classifiable under sub-heading 8454.90 of Central Excise Tariff Act, 1985 and not under sub-heading No. 8454.10 ibid. In this connection, ld. Advocate submitted that they have despatched the complete machines in CKD/knocked down condition. Had they cleared parts and not complete machines, then the judgment in the case of Bhilai Engineering Corpn. Ltd. v. CCE, Raipur (supra) could have been applied against them. He, therefore, relied on the judgment rendered by this Bench in the case of TRF Ltd. v. Commr. of Central Excise, JSR reported in [2002 (150) E.L.T. 283 (Tribunal)] = 2002 (51) RLT 348 (CEGAT-Kol.) in which it has been held that if the machine is cleared in CKD condition where entire parts/components of a complete machine are cleared, spread over a period of time, because of huge size of machine and for convenience of transportation, the same have to be assessed as machine and not parts of machines.
3. Ld. JDR, Shri N.K. Mishra, submits that they have cleared rolls which are used in the rolling machines and casting machines. Since the rolls are parts which are used in the rolling machines and casting machines, they cannot be considered as complete machines and they are, therefore, required to be classified under sub-heading No. 8454.90 of Central Excise Tariff Act, 1985 and not sub-heading No. 8454.10. He refers to the judgment of this Bench in the case of TRF Ltd. v. Commissioner of Central Excise, JSR. (supra), in which machines, if cleared in CKD conditions were held to be assessed as a machine, whereas the facts in the present case are distinguishable since what has been cleared as rolls and has been mis-classified as machines with intention to evade payment of duty. Therefore, this judgment is not relevant to the instant case. He also submitted that the judgment rendered by the CEGAT, New Delhi in the matter of Bhilai Engineering Corpn. Ltd. v. CCE, Raipur referred to by the ld. Advocate is actually favourable to the case of the Revenue since roller tables and mould oscillators were held to be parts of the complete continuous casting machines classifying under sub-heading 8454.90 and not under sub-heading 8454.10 of Central Excise Tariff Act, 1985.
4. We have considered the rival submissions and we are of the considered opinion that the facts mentioned in the case records as well as in the impugned order and the appeal memo, are quite ambiguous and lack clarity. It is well settled as held by this Bench in the case of TRF Ltd. v. CCE, JSR. (supra) that if a machine is cleared in CKD condition and where entire parts/components of a complete machine are cleared, spread over a period of time, because of huge size of machine and for convenience of transportation, the same are to be assessed as machine. The Revenue should clearly mention whether certain parts of this machine were bought out items and whether they were cleared as such from the factory after including the value of the total machines and whether they had paid the duty at the total contracted value of the machines. If duty has been paid on the total contracted value of the machines and if the machines had been cleared in CKD conditions though transported spread over a period of time, they have to be assessed as machine and not as parts. However, if the rolls alone have been cleared and these rolls are used in the rolling machines and casting machines, manufactured by the appellants, then the said rolls would be treated only as parts classifiable under sub-heading 8454.90 and not as machine under subheading 8454.10. In view of the above position and well settled legal position, contracts are required to be verified for each parts/machines and whether the machines were cleared in knocked down condition and whether the duties have been paid on the entire contracted value of the machine. We therefore, set aside the impugned order and remand the matter to the Commissioner for fresh decision in the light of the above observations made by us. Appeal is thus allowed by way of remand. Ordered accordingly.