ORDER
S.S. Sekhon, Member (T)
1. When the matter was called, none appeared for the appellants. We proceed to decide the issue since the matter is pending for long. The D.R. was heard and matter on record considered.
2. The appellants imported certain goods in running length up to 20 Mtrs. which could be used as wave guide, only after further processes like cutting to definite lengths, etc., was undertaken after import. They claimed classification under Heading 8510.10 while department classified them under 8307.90 for the following reasons :-
(i) The impugned goods in running length cannot be treated as parts relying on CEGAT judgment in the case of Collr. of Customs, Bombay v. Hydranautics Membrane (India) Ltd., reported in 1994(71) E.L.T. 711(Tri);
(ii) End-use not relevant for customs classifications relying on judgments in the case of Tata Export Ltd. v. Union of India and Ors. reported in 1985 (22) E.L.T. 732 (M.P.) and Dunlop India v. U.O.I, reported in 1983 (13) E.L.T. 1566 (S.C.);
(iii) The goods to be assessed in the form which present relying on judgments in case of Miles India Ltd., Baroda v. CC., Bombay reported in 1983 (14) E.L.T. 2457 (T) and in the case of Shriram Refrigeration Industries Ltd. v. CC, reported in 1993 (63) E.L.T. 593 (T);
(iv) Only ready to use entitles without further processing can be considered as parts relying on judgment in the case of Vikas Engg. Associates v. CCE, Allahabad reported in 1995 (78) E.L.T. 219 (T).
3. The appellants have taken the following grounds in appeal :-
“(a) The department of Telecommunications, New Delhi, through the letter stated that the said waive guides are ‘Microwaive passive components’ and the same are used after cutting them in size as the length has to be ascertained at the time of fitment only and hence, the ld. A.C. has erred in not considering the said letter from the Department of Govt. of India.
(b) The ld. Assistant Commissioner also has erred in not giving due weightage to catalogue and literature to evidence that these are exclusively designed and fabricated to be used only as Microwave Components.
(c) The Appellants say that heading 85.30 covers:
Heading No.
Sub-heading No.
Description of goods
85.30
8530.00
Electrical signalling, safety or traffic control equipment for railways, tramways,
roads, inland water-ways, parking facilities, port installations or airfields
(other than those heading No. 86.08)
As against this Heading 83.07 covers:
Heading No.
Sub-heading No.
Description of goods
83.07
8307.00
Flexible tubing of base metal, with
or without fittings.
If the description of Headings 85.30 and 83.07 are considered, Your Honour would appreciate that Heading 85.30 is more specific and hence, has to be preferred in support of which reliance is placed on interpretative Rule 3(a), relevant portion of which reproduced below :
‘3(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods’.
(d) The Appellants say that the ld. Assistant Commissioner has relied upon explanatory notes to HSN of Heading 83.07 appearing at Page No. 1123 for classifying the Wave Guide under Heading 83.07. In this connection, the Appellants say that the ld. Assistant Commissioner has not considered the said Explanatory Notes in toto where at the bottom of the Heading 83.07 at Page No. 1124, it is stated that Heading 83.07 excludes flexible tubing made into of the form of machinery or vehicle parts, etc., and the same would be classifiable under Section XVI under which Chapter 85 is covered.
(e) The Appellants say that the Hon’ble Commissioner (Appeals), vide Order-in-Appeal No. 520/96/BCH, dated 5th August, 1996 has held the classification of “Microwave Passive Components” under Heading 85.29 since, Wave Guide therein was used in transmission lines on the basis of CEGAT judgments in the case of Shriram Refrigeration Industries v. Collector reported in 1993 (63) E.L.T. 593 (Tri) and Collector v. Hydranautics Membrane (India) Ltd. reported in 1994 (71) E.L.T. 711 (Tri). After discussing the said judgments, Hon’ble Commissioner (Appeals) came to a conclusion of the classification under Chapter 85. The ratio of the said judgments is squarely applicable to the case. Hereto annexed and marked as Exhibit ‘C’ hereto.
(f) The Appellants say that the Hon’ble CEGAT in the case of The Director of Telegraphs, Microwave Project, Bombay v. CC, Bombay reported in 1983 ECR 1265D (CEGAT) has held that wave guides cover accessories, component parts of Microwave Equipments classifiable under Item 73 (13) I.G.T. read with exemption Notfn. No. 147/58-Cus. the ratio thereof also renders persuasive support to the Appellants’ say.
(g) Refer to Rule 2(a) of rules for the interpretation of the Schedule which states that any reference in a heading to goods shall be taken to include reference to those goods incomplete or unfinished provided that incomplete or unfinished goods have the essential character of the complete or finished goods. The Appellants say that the cutting to a required length of flexible tube is not a process of manufacture and there being uncertainty of distances between two points flexible tubes are sent in running length. In Central Excise also cutting or slitting to a required size is not considered as a process of manufacture.
(h) Rule 3(c) states that when the goods can be classified under two headings then the latter heading should be preferred to the earlier heading.
(i) It may further be pointed out that the Heading 83.07 refers to raw materials and not to finished product.
(j) The adjudicating authority had referred to Chapter Note to CCN entry 8307. However, he has failed to notice the further notings which say that this heading also excludes “(b) flexible tubing made into form of machinery or vehicle parts etc. e.g. By assembly with other material. (Sections XVI and XVII).’
4. After considering the material it is found –
(a) It is well settled that goods have to be assessed in the form in which they are presented for assessment, running length of 20 Mtrs. in this case and not as component/part of or a wave guide. The form of and function on wave guide is obtained and undertaken after further processing is not contested.
(b) Relying on the decision of the Tribunal in the case of Hy-dranautics Membrane (India) Ltd. – 1994 (71) E.L.T. 711 and the dismissal of the appeal filed by Otis Elevator Co. (India) Ltd. by the Apex Court – 1995 (78) E.L.T. A219 against the decision of the Tribunal, who had held in that case imports in running lengths did not qualify as components, we find no merits in the present appeal. The same is required to be dismissed.
5. In view of our findings, the appeal is dismissed.