ORDER
V.P. Gulati, Vice President
1. Since a common issue is involved in all these appeals, they are taken up together for disposal.
2. The issue in the appeal relates to assessment of the goods which are described as wiper motor with tubular link by the respondents and the authorities below. The learned lower authority held the goods to be assessable under T.I. 85.01 against the assessment under T.I. 85.12 as held by the learned original authority. The two competing items are reproduced below :-
85.01 Electric motors and generators
(excluding generating sets).
85.12 Electrical lighting or signaling
equipment (excluding articles of
Heading No. 85.39), windscreen
wipers, defrosters and demisters,
of a kind used for cycles or motor
vehicles.
3. The learned DR referring to the grounds of appeal has pleaded that in terms of Chapter Note 2 to Chapter 85, the Heading No. 85.01 would not apply to the goods covered under Tariff Heading 85.12. The learned DR pleaded that admittedly the wiper motor with tubular link are designed for use in windscreen wipers and since the windscreen wipers are covered under T.I. 85.12, the goods in question would also be covered under that heading as the parts of windscreen wipers would also fall under T.I. 85.12. He pleaded that the learned lower authority has not taken into consideration Chapter note 2 nor the features of the motor in question while assessing the goods under T.I. 85.01. He therefore pleaded for that reason the order of the learned lower authority is not a proper order.
4. The learned Counsel pleaded that a perusal of the order of the learned original authority and the learned lower appellate authority would show that what the respondents manufactured is only an electric motor and this by itself is not a windscreen wiper and since there is a separate heading for electric motors i.e. T.I. 85.01, the goods should be assessed under that heading. He pleaded that the Assistant Collector has accepted that without the link attachment the item would call for assessment under T.I. 85.01. The issue therefore narrows down to whether the attachment of the link would bring the item within the ambit of T.I. 85.12. He pleaded that in terms of HSN notes, even if the gears are attached to the electric motors these will continue to fall under T.I. 85.01. He pleaded that the scope of chapter note is rather restricted and that would be applicable only in the event where the goods which are manufactured answer to the specific description of the goods under T.I. 85.12. His plea is since windscreen wipers alone are specifically mentioned, the motor which otherwise for the sake of argument, is usable only for the windscreen wipers would still not be assessable under that heading.
5. In a rejoinder, the learned DR pleaded that the startor motors are covered under T.I. 85.11 and the parts of the same would also be falling under Chapter Heading 85.11, even though there is a specific heading for electric motors under Heading 85.01. His plea is that once the main item is assessable under the Heading 85.12, the parts which are intended for the use of the same would also fall under the same heading.
6. The learned Counsel in reply pleaded that there is a specific heading for startor motors under 85.11 and therefore by reason of that the assessment under 85.01 stands excluded by virtue of Chapter note 2 and inasmuch as wiper motors do not figure under T.I. 85.12 and only windscreen wipers figures under that heading, the motor in question is assessable under Tariff Heading 85.01.
7. We have given a careful thought to the pleas made by the both sides. We observe that the issue is required to be examined in the context of the entries under Tariff 85.01 and 85.12 read with Chapter note 2 to Chapter 85. The respondents goods admittedly are not windscreen wipers as such. These are electric motors with an attachment for possible use according to the learned Counsel for the manufacture of windscreen wipers. No catalogue as such has been produced before us only a photograph has been produced. The features and characteristics of these motors are also not before us for consideration. With a view to decide the issue it is necessary to refer to these features and also the manner of the use of the motors for the purpose of manufacture of the wind screen wipers. Further, the issue is required to be examined as to the scope of Chapter note 2 vis-a-vis the description and the scope of entries under Headings 85.01 and 85.12. The learned lower authority has not adverted to all these and not examined the issue in depth with reference to the aspects as above. What is required to be decided is as to what is the scope of Chapter note 2 to Section 85 and what are the items of Heading 85.01 which are taken to have been drawn out to Heading 85.12 by virtue of Chapter note (2) and whether the parts falling under Heading 85.12 be a motor or otherwise would fall under Heading 85.12 or by reason of the specific entry for electric motor under Heading 85.01 the motor would be assessable under Heading 85.01. All this not having been adverted to, we hold that the order of the learned lower authority cannot be said to be a proper order and in this view, we set aside the order of the learned lower appellate authority and remand the matter to the said authority for de novo adjudication after giving the respondents an opportunity of being heard and also an opportunity to the deptt. to put forth the case if they choose to do. The appeals are therefore allowed by remand.