ORDER
P.K. Kapoor, Member (T)
1. This is an appeal against the order passed by the Collector of Customs (Appeals), Bombay.
2. The brief facts of the case are that the appellants filed Bill of Entry case No. 2759D dated 13-3-1981 for the clearance of goods declared as ‘Components of Cement Making Machinery’. In the invoice the goods in question were described as ‘Load Cells for Raw Mill and Kiln Department’. The goods were assessed to duty under I.C.T. Heading 84.20(2) as parts of weighing machinery’ @ 40% + 5% (Auxiliary). The goods were also subjected to C.V. duty of 15.75% (15% + 5%) under C.E.T. Item No. 45. Though in the case records, the copy of the appellants’ refund claim is not available it appears from their appeal memorandum filed before the Tribunal that after obtaining a certificate from the DGTD to the effect that the parts in question were meant for the manufacture of cement machinery falling under Heading 84.56 of C.T.A. 75 and were eligible for concessional rate of customs duty in terms of Customs Notification No. 179-F No. 270/99/79-Cus. I, dated 4-9-1980, they applied for refund on the basis of reclassification of the goods under Heading 84.56 as parts of cement machinery @ 40% + 5% + 8% (C. V. duty). There is no indication in the Assistant Collector’s order rejecting the appellants’ claim for refund of duty or in the order passed by the Collector (Appeals) about any claim having being made on the ground of CIF value having been wrongly worked out in the Bill of-Entry as Rs. 67,345/- instead of Rs. 66,844/-. However, in the appeal before us the appellants have contended that their claim for refund of duty on this ground was also rejected. It is seen that the Assistant Collector inferred that the appellants were claiming reassessment of Auxiliary duty on the goods and rejected the claim on the ground that the goods having been assessed at the lower rate of basic duty @ 40%, even if they were reassessed under Heading 84.56 of the C.T.A. 75 read with Notification No. 179/80-Cus dated 4-9-1980 as parts of cement machinery, they would not fall in the category of goods fully or partially exempt from the duty of customs specified in the first schedule, and would continue to attract auxiliary duty @ 5% which was levied at the time of original assessment and as such no relief in terms of Notification No. 41/80 was admissible. The appeal filed by the appellants was rejected on identical grounds by the Collector (Appeals) who did not consider it necessary to hear the appellants on the grounds that they had been heard by his predecessor.
3. Shri A.K. Varshneya, an executive in the appellants’ company appeared before us. He stated that in terms of the certificate issued by the DGTD the goods in question ought to have been reassessed under Heading 84.56 at the rates indicated in their appeal memorandum at the concessional rate of duty in terms of Notification No. 179/80-Cus.
4. On behalf of the department we heard the learned JDR Shri M.K. Sohal. He stated that the goods in question were assessed under Heading 84.20(2) at 40% + 5% (Auxiliary duty). He pointed out that even if the goods were to be assessed under Heading 84.56 of the C.T.A. read with Notification No. 179/80 as parts of Cement Machinery, they would still be liable to basic customs duty @ 40%. He contended that even on such reassessment the goods would not be either partially or fully exempted and, therefore, they would not be eligible to any relief of auxiliary duty in terms of Notification No. 41/80.
5. We have gone through the records of the case and considered the submissions made on behalf of both the sides. It is seen from the records that the lower authorities proceeded on the basis that the appellants were contesting the auxiliary duty levied on the goods. However, we find that the main ground of appeal before us is that as against the assessment of the goods under Heading 84.20(2) @ 40% + 5% + 15.5% (C.V. duty) they ought to have been assessed as parts of cement making machinery under Heading 84.56 read with Notification No. 179/80 @ 40% + 5% + C.V. duty @ 8%. Thus, what the appellants seek is the reassessment of C.V. duty on the goods under Item 68 of the C.E.T. as parts of Cement Making Machinery as against the original assessment under Item 45 of the C.E.T. as parts of weighing machinery. Since the copy of the application for refund filed by the appellants before the Assistant Collector is not available in the records, it is not possible to say whether even before the lower authorities the appellants’ claim was for revision of C. V. duty and not auxiliary duty. In any case, even if it is assumed that incorrect assessment of C.V. duty on the goods, is a fresh ground raised by the appellants for the first time in the appeal before us; it will be permissible for us to consider it since as held by the Tribunal in the case of Collector of Customs v. Photogravurs (India) Pvt. Ltd. [1987 (29) ELT 647 (Tri.)], classification under a different heading being purely a question of law can be raised at any stage.
6. In view of the above discussion, we now proceed to examine whether in terms of the certificate issued by the DGTD the goods in question were classifiable as parts of cement making machinery. In this regard it is seen that the goods were described in the supplier’s invoice as ‘Load Cells’. The Chambers Dictionary of Science and Technology defines a Load Cell as “A load detecting and measuring element utilizing electrical or hydraulic effects which are remotely indicated or recorded”. Further it is seen that while examining the question of dutiability under the Central Excise Tariff of Weighbridges assembled out of parts, the Supreme Court in the case of Name Tulaman Manufacturers Pvt. Ltd. v. CCE [1988 (38) ELT 566 (SC)] had occasion to observe that weigh-bridges consist of three main parts, namely platform, loadcells, and the indicating system. Thus, being parts of weigh-bridges, the imported load cells were correctly classified in terms of Note 2(a) of Section XVI of the Customs Tariff as parts of weighing machinery under the specific Heading 84.20(2). The appellants’ contention that in terms of the certificate issued by DGTD the goods ought to have been assessed as parts of cement making machinery under Heading 84.56 of CTA read with Notification No. 179/80 has no force since the goods being parts of weighing machinery were classifiable under the specific Heading 84.20(2). They were, therefore, not covered by Notification No. 179/80, which extended partial exemption from basic customs duty to goods which were classifiable under certain specified Heading, other than Heading 84.20(2).
7. For the purpose of C.V. duty the imported load cells were classified under Central Excise Tariff Item 45 which covered “Machinery and appliances for determination of weight including parts of weigh-bridges”. Since the load cells in question were parts of weigh-bridges it has to be held that for the purpose of C.V. duty they were correctly classified under the specific Item 45 of the CET in preference to the residuary Item 68 of the Tariff under which goods could be classified only if they could not be fitted under any other item.
8. Before we part with the matter we would also like to refer to the appellants’ claim for refund on the ground that there was an error in computation of the assessable value. Since there is no evidence of any claim on this ground having been made before the lower authorities, we do not propose to examine it at this stage.