ORDER
T.K. Jayaraman, Member (T)
1. The Miscellaneous application and the appeal petition have been filed by M/s. Widia (India) Ltd.
2. The appellant company was earlier known as M/s. Widia India Ltd. when the appeal was filed. The name of the company is now changed to M/s. Kennametal Widia India Ltd. There is a prayer that the cause title of the company may be changed to read as “M/s. Kennametal Widia India Ltd.” We allow the miscellaneous application for change of cause title.
3. The appeal has been filed against Order-in-Appeal No. 138A/2003 Central Excise dated 1.10.2003 passed by the Commissioner of Central Excise (Appeals-II), Bangalore.
4. The impugned order has been passed consequent to CEGAT’s remand order E/1707/96, E/37, 38/98 dated 25.1.2002. The issue is correct classification of the following items.
(i) Tungsten carbide guides, bushes, jaws, cambeaks, rubbing pads, work driver jaws, core rods,
(ii) Round wear part blanks, work rest blades
(iii) TC Centres
(iv) TC Flats
The lower authority has held that the above items would be classified under Chapter 8209. However, the appellants contended that the same would be classified under Chapter 8466. The Commissioner (A) after examining the issue upheld the decision of the lower authority. He has relied on the decision of the Tribunal in the case of Sandivk Asia Ltd. v. CCE, Pune with regard to classification of similar item. He has also relied on the decision of he Tribunal in the case of CCE, Vadodara v. Rapicut Carbides Ltd. . He has also drawn support from Board’s order under Section 37B of the Central Excise Act vide order No. 2/92 dated 21.4.1992 on similar goods. In view of the above, the Commissioner (A) has justified the view of the lower authority. The appellants strongly challenge the impugned order. Hence, they have come before this Tribunal for relief.
5. Shri S. Raghu, learned Advocate for the appellant and Shri K. Sambi Reddy, JDR for the Revenue.
6. The learned advocate urged the following points.
(i) The impugned goods are actually parts and accessories suitable for use solely or principally with a machines of heading 84.56 to 84.65. Consequently, the impugned goods would be classifiable under 8466 only and not under 8209 as held in the impugned order.
(ii) Even though the specific function of each item was explained, the impugned order does not deal with them.
(iii) The description of the products was backed by technical literature.
(iv) Expert opinion from CMTI, a Government organization and Indian Institute of Science was obtained and produced at the first stage itself but no findings on the technical literature or expert opinion has been given in the impugned order.
(v) The Board’s circular was issued when a question arose as to whether the classification of the product mentioned in the circular was to be done under CSH 8101 or 8209. There was no reference to CSH 8466 in that circular and hence, the circular is not binding either on the assessee or the department, as the in the present case the dispute is between 8209 and 8466.
(vi) It is well settled that the burden of classification is on the department and it has not discharged the same. The following case laws are relied on.
(i) Up Twiga Fibre Glass 1990 (49) ELT 455
(ii) Bhor Industries
(iii) Bakelite Hylam Ltd. (Supreme Court)
(iv) Ambalal Sarabai .
(vii) With regard to expert opinion produced no contra evidence has been given by the Department except reliance on Board’s circular.
(viii) The Tribunal in the case of Sea House Industries Ltd. – 2005 (197) ELT 161 has held that items solely for use in particular machine should be treated as parts of that machine.
(ix) The learned Commissioner also erred in observing that even though the impugned goods are not plates, sticks or tips yet he is not inclined to accept the argument for exclusion from CSH 8209 on the ground that the mention “and the like” in the description under 8209 would encompass all other similar items apart from the items specifically mentioned. This observation of the learned Commissioner reveals that he has not properly appreciated the scope of the said tariff entry. The words “and the like” does not invariably lead to the inference that it includes the impugned goods also. A simple reading of the tariff entry would reveal only if the like goods are in the form of plates they would merit classification under CSH 8209. Hence the conclusion of the learned Commissioner to the effect that he is not inclined to accept hat the contention of the appellant that the impugned goods do not fall under CSH 8209 is baseless.
(x) As regards reliance on the decision of the Tribunal in the case of M/s. Rapicut Carbides cited supra, the Commissioner erred because in that case the issue before the Tribunal was between items 8209 and 8448 and not the classification of the goods under 8466.
(xi) The Commissioner erred in confirming the classifications in respect of TC guides, bushes, jaws cambeaks, rubbing pads, work driver jaws, core rods which are not subject matter either in the decisions relied upon by him or Board circular.
(xii) Prior to the issue of Board’s circular dated 21.4.92, the impugned products were classified under 8466 only and classification lists were duly approved by the proper officer.
7. The learned departmental representative (JDR) reiterated the findings of the impugned order.
8. We have gone through the records of the case carefully. First let us reproduce the competing entries in the tariff.
8209 – Plates, sticks, tips and the like for tools, unmounted, of cermets. (Department’s classification)
8466 – Parts and accessories suitable for use solely or principally with the machines of headings 8456 to 8465, including work or tool holders, self-openings die heads, dividing heads and other special attachments for machine-tools; tool holders for any type of tool, for working in the hand. (Appellant’s classification)
Let us try to understand the functions of the impugned goods as stated by the appellants.
1. TC Guides. These are basically cylindrical bodies with a central hole used as guides. For e.g. in a drilling rig or in a guide bush for feeding rods, in an automatic lathes.
2. Bushes: Bushes are basically cylindrical bodies with a central hold used as guides. For e.g. in a drilling rig or in a guide bush for feeding rods in an automatic lathes. The bushes primarily serve as a guide and there is no cutting action involved.
3. Jaws/work driver jaws: These are used as wear parts on machinery to hold the jaws by action of centrifugal force.
4. Cambreaks: These are wear parts, subject to heavy wear. The working edge is therefore, lines with tungsten carbide flats.
5. Centres: These Centres are standard accessory of any lathe. The front portion of the centre is made out of tungsten carbide which has been fixed to the rest of the body by means of brazing. Centres are parts which are fixed to the tail stock of the lathe and to serve to support the rotating work piece by engaging against suitably female centre of the job.
6. Core Rods: Core Rods form a part of powder compacting die and is used to form inner profiles of the powder compact. Generally, core rods are tungsten carbide bushes inserted on steel body. Small sizes may be in the form of ground rods. Some users designate small sized core rods as plungers.
7. TC Flats: TC Flats are generally used to work rest blades. These work rest blades using flats are used in centreless grinding machine. This is a machine part subject to heavy wear. Therefore, the working edge is lines with tungsten carbide flats. Since this is a machine part, it cannot be classified under 8209.00.
8. Rubbing Pads: These are used as wear parts on trepanning heads. The pads are radically mounted opposite the tool to take the reaction force.
9. TC Rounds – wear part blanks: These are used in cold rolling mills (wear resistant application) used a mandrels for holding the jobs in machines and such other applications.
10. Work rest blades using flats: The work rest blade is a standard accessory for a centreless grinding machine. The working edge is subjected to heavy wear and is therefore lined with tungsten carbide flats which have been fixed. Work rest blade is fixed to the centreless grinder by mechanical clamping.
11. Tiles: Aids for protecting surfaces subject to heavy abrasion wear.
12. Rings/half rings: These are fixed to the working surface of the jigs and fixtures which are subjected to heavy wear. These items are fixed to the base metal, whereas larger rings are secured by mechanical fastenings. The mating parts of these seal rings are made of soft material in centrifugal pumps.
8.1 The following expert’s opinion has been produced by the appellants.
CENTRAL MACHINE TOOL INSTITUTE
TUMKUR ROAD, BANCALORE-540021 (India)
Ref. No. T15/115/115SC/9
Date 29.9.93
CERTIFICATE
TOWHOM SO EVER IT MAY CONCERN
We have examined the following document with respect Lo Tungaton earbide centre, tungsten carbide flats, tungaten carbide work real biades, tungaten curbide guides and bushes.
1. Sintered Metal Carbides published by Mir Publisher. Moscow.
2. Motain Handbook 11th Vol. I published by American Society for Melain, USA
3. Carbides by Kosoiprva Published by Plenum Press 1971.
4. Hanbook of Engineering Materials by Mincs & Senstone Published by John Wiley & Sons, Inc. New York, 1955
Our Comments are as follows:
1. Carbides because of their high hardness and their ability to retain their hardness oven at high temperature have excellent properties of wear resistance. Wear resistance is defined as the ability of the material to withstands abrasion caused by friction of (sic) adjacent parts. Hence carbides are used extensively for manufacture of machine parts subjected to intensive wear.
2. The items mentioned above are machine parts and accessories and not tools. Hence in our opinion the tungsten carbide centres, tungsten carbido flats, tungsten carbide work rent bindes, tungston carbide guides and bushes manufactured by M/s Widia (India) Ltd. cannot be used as tools and hence cannot be classified: under tools under the Central Excise Classification Chapter No. 82 Subheading No. 8209.00.
However the items referred to above qualify to be classified under chapter 84 subheading No. 8166.00 “Paris and accessories suitable for use mololy or principally with the machines of headings Nos. 84.56 to 84.65, including work or tool holders, self-opening die-heads, dividing heads and other special attachments for machine-tools; tool holders for any type of tool for working in the hand” as per Central Excise Classification.
for Central Manufacturing Technology Institute
(M.S. SRIKANTIAII)
Scientist ‘E’
Head, NICMAP
Mr. Ajeet Khare
General Manager-Marketing
Widia (India) Ltd.
8/9th Nile, Tumkur Road
Post Bag 7300
Bangalore – 560073.
Dear Mr. Khare,
Sub: Central Excise – Classification of certain items.
This has reference to your letter No. EX/GDS/400 dated 5/10/1993 addressed to Centre for Scientific and Industrial Consultancy of our Institute seeking expert opinion on excise classification relating to the items such as, Tungsten Carbide Centres, Tungsten Carbide Flats, Work rust blades using Tungsten Carbide Flats and Tungsten Corbide Guides and Bushes. Your letter was forwarded to (sic) for the necessary advice.
I have perused the technical literature of your Company dealing with the above- mentioned item and also I have referred to the standard text books/published literature on such items. Based on my experience and reference to the available published literature, I have furnished the clarifications as per the enclosed note. I do hope that, the clarifications offered in the accompanying note will clarify the points, raised by the Excise Department and suitably modify their classification of the above mentioned items.
I am pleased to enclose herewith photocopies of some published literature for your kind reference.
With warm regards,
Yours sincerely,
Prof. K.S. Sreehivasa Murthy
Encl: as above.
NOTE
Classification of the following items being manufactured by M/s. Widia (India) Ltd. with reference to Central Excise.
The items referred to the undersigned for expert opinion on Excise Classification are:
1. Tungsten carbide centres
2. Tungsten carbide flats
3. Work Rest blades using tungsten carbide flats
4. Tungsten carbide guides and bushes.
1. Tungsten carbide centres:
The most common method of holding the job or work in a lathe is between two centres – Iive centre and dead centre. These lathe centres are necessarily to be made of very hard materials that resist wear and deflection. As otherwise, any significant wear or deflection will affect alignment of the work and therefore, the accuracy of the job. Therefore, the materials selected for the lathe centres are either hardened steel or for better performance, Tungsten Carbide which is a very good wear resistant material. There are several variations in the design of lathe centres.
2. Tungsten carbide flats:
Tungsten Carbide flats are generally used on Work rest blades which, in turn, are used on Contreless grinding machines. Work rest blade is the support on which the work piece directly rests in Centreless Grinding. The name, blade, is given, because, it is in the form of a plate, the thickness of which is rather less when compared to its width and length. Since, the work constantly (sic) on the work blade, the work blade is subjected to wear in use and also power is lost in friction. Therefore, the blade should be made of a suitable material and also shape. The blade material, thus, should be hard enough to resist wear. A variety of blade materials are being used but the material which offers the best wear resistance and no, excellent performance is Tungsten Carbide. The work rest or the work support is the supporting fixture mounted on the machine between the grinding wheel and the regulating wheel in the Centreless Grinding. Work rests are of different designs to suit different grinding operations. As the work rest is responsible for alignment of the work for grinding operations, this is also subjected to severe wear and hence, is to be made of highly wear resistant materials such as, tungsten carbide.
3. Tungsten Carbide Guides and Bushes:
Tungsten carbide guides and bushes are the components which are extensively used in different applications and are of different designs. They are, once again, considered as wear parts and hence are made of highly wear resistant materials. Therefore, Tungsten Carbide is the proper material offering excellent wear resistance and although, expensive, is used in several applications.
From the above, it can be very clearly visualised that all the components mentioned above are not cutting tools, but are the components used in several applications especially, machine tools as wear parts. Although, the material used in such components is Tungsten – Carbide (it is also used for cutting tools), the above items are not intended to function as cutting tools. It is, therefore, obvious that the above mentioned items are not to be classified as tips, sticks or plates classified under Chapter 8709.00 – Plates, sticks, tips and the like for tools, unmounted, of sintered metal carbides or cermets. On the other hand, they are to be classified under sub-heading 84.66 under chapter 8466.03 – ‘ Parts and accessories suitable for solely or principally with the machines of heading Nos. 84.56 to 84.65, including work or tool holders, self-opening die-heads, dividing heads and other special attachments for machine-tools; tool holders for any type of tool for working in the hand.
In conclusion, I would wish to reiterate that, the above mentioned items are to be treated as parts and accessories of machine tools rather than plates, sticks, tips and the like for tools.
2-10-1993 PROF.K.S. SREENIVASA MURTHY.
A careful of the expert’s reading indicates that the impugned goods are parts and accessories suitable for use solely or principally with the machines of heading No. 84.56 to 84.65. From the impugned order, we find that there is no discussion of the opinion of the experts and the technical literature produced. No contrary opinion has been produced by Revenue.
8.2 Furthermore, the appellants have indicated the machines of which the impugned products are parts and accessories.
Sl. No.
Description
CSH No. of the Machine in which the products
are used
1.
TC Guides
84589910/84589931
2.
Bushes
84592940/84592950
3.
Jaws/Work driver jaws
8458991
4.
Cambeaks
84602910/84602920
5.
Centres
84589910/84589100
6.
Corerods
84629100
7.
TC Flats
84602930
8.
Rubbing pads
84592940/84592950
9.
TC rounds – wear part blanks
84631030
10.
Work rest blades using flats
84602930
The lower authorities have not examined these points at all. After going through the functions of the impugned goods and also the opinion of the experts, we are satisfied that the impugned products would be rightly classifiable under 8466 and not under 8209. In these circumstances, we allow the appeal with consequential relief.
(Pronounced in open Court on 7 Nov. 2006)