ORDER
S.L. Peeran, Member (J)
1. This appeal arises from Order-in-Appeal No. 228/90, dated 26-7-1990 passed by the Collector of Central Excise (Appeals), Madras, confirming the classification of the product pipes storaging stand, fixtures (for side structure assembly cabin) and fixtures (for door assembly of cabin) under sub-heading 7308.90, as against the claim of the appellants for classification of the said items under Heading 8479.00. The classification list pertaining to the years 1987-88 and 1988-89.
2. The appellants claimed that the items are to be falling under the heading description machines, mechanical appliances having individual functions not specified or included elsewhere in that Chapter. The learned advocate points out that there is a basic error in the impugned order, inasmuch as that the Commissioner (Appeals) has raised the proof of burden of classification on the assessee and the claim placed by them in terms of the items sketch, blue print and photograph etc. to be claimed that the fixtures manufactured by them would appropriately be classified under Tariff Heading 84.79 has been disregarded solely on the ground that the appellants have not produced any evidence. He points out to the findings given by the Commissioner that they ought to have produced the engineers, experts and other officers and further to produce evidences in support of that and submits that it is for the revenue to discharge the burden as to how the items are treated as goods, as according to him, the plea pertaining to the item being not goods and not marketable has also not accepted with summary finding that it is for the appellants to produce evidence regarding marketability. He points out that when the goods are not marketable and are not marketed, then it was for the revenue to prove as to how the goods would be classified under Heading 7308.90 which reads as structures of iron or steel, plasters, rods, shapes, sections, tubes and the like of iron or steel. He submits that although the appellants had filed classification list, but in any event their plea of the item being not goods and not marketable could be raised even at the appellate stage and it was for the revenue to show that the items are marketable or goods. He submits that the appellants are carrying out body building activities. He points out that the body building is a process of converting steel received in the form of plates, sheets, coils etc. into components which are assembled and welded together to take the shape of body/cabin. Fixtures are those devices which enable the components to be assembled and welded together to form a body. These are designed to suit a particular type of body. They are any way machinery enabling production of end product. These fixtures are adjustable manually to suit operators convenience for the purposes of welding. Such fixtures, with the use of clamps and such other similar items, enable the operator to hold the components in place and allow him to weld them into position. He submits that they are not articles of iron and steel or classifiable under sub-heading 7308.90, as the items in question have a specific individual functions, inasmuch as that the individual functions of these fixtures are to enable the operator to assemble the components and weld them together to form a body of the motor vehicle. Therefore, he submits that the claim of the party that these fixtures and parts and accessories of motor vehicle falling under Chapter 73.08 could have been accepted, in alternative, after the revenue discharging the burden of marketability and the item being goods. He also relied on the definition of the term “fixtures” appearing in the Chambers Science & Technology Dictionary -Prof. Peter M.B. Walker, CBE, FRSE, published by Allied Publishers Ltd., which defines fixtures as. “A devise used in the manufacture of (interchangeable) parts to locate and hold the work without guiding the cutting tool”. The counsel further points out that the jigs and fixtures are specifically exempted under Notification No. 220/86-C.E., dated 2-4-1986, which falling under Chapter 74 and submitted that the matter is required to be remanded for de novo consideration.
3. The learned DR reiterated the Commissioner’s findings and submitted that the appellants filed classification list and these items are being used in the factory, which discloses that they are goods and hence, they are required to be classified only under Heading 7308.90.
4. On a careful consideration of the submissions, it is seen that the appellants had taken a specific plea that the item is not goods and they are not marketable and in alternative pleaded by producing sketches, photographs etc. to show that it is a fixture and used for manufacturing the motor vehicle parts. The claim of the appellants to treat it as motor vehicle body and in alternative it was not considered including the plea of the items as goods. There is a basic error in the Commissioner’s order inasmuch as that the Commissioner has placed the burden of marketability of the items on the appellants and also the aspect pertaining to classification. Which is now well settled that the burden of classification and to show that the item is marketable and or goods is solely on the revenue and in this case, the Commissioner has laid the burden on the appellants to discharge the same. This is against the well settled law. Further, the appellants had produced evidence and the said evidence has not been considered by both the lower authorities. Therefore, the orders passed by both the authorities are non-speaking orders. Although the matter is an old one, as the basic aspect pertaining to classification and the item being goods has not been answered by the authorities, but the burden has been shifted on the appellants, therefore, a basic error in the order impugned calling for interference by way of setting aside the same for de novo consideration. In the case of Elecon Engineering Co. Ltd. v. C.C.E. as reported in 1999 (31) RLT 5, the aspect pertaining to classification of structures was considered and after a detailed examination in the light of the judgments of Hon’ble Apex Court, High Court and Tribunal, the Tribunal concurred that merely because of the items are specified under the Tariff, that by itself has no ground to classify the same under the said heading, unless the individual items are goods or marketable. Therefore, the said judgment of the Tribunal has to be taken into consideration by the authorities below.
5. In that view of the matter the impugned order is set aside and the case is remanded for de novo consideration with a specific direction that the original authority shall grant full opportunity to the appellants and the burden of classification has to be discharged by the revenue and not by the assessee. The revenue should point out the evidence to the assessee as to how the items are marketable or goods, so that the assessee can counter the-evidence and a speaking order is required to be passed in the matter.