ORDER
C. Satapathy, Member (T)
1. Shri V.S. Nankani, learned Advocate appearing for the appellants states that the appeal is in respect of the disputed classification of 27 products listed in exhibit A in the paper book. He further states that on instruction from the appellants he is not pressing the appeal in respect of the product at Serial No. 9. As regards the products at Serial Nos. 1-8, the appellants claimed classification under Heading 81.01, the department classified the same under Heading 82.09 and on a remand from the Commissioner (Appeals), the subsequent classification has been done under sub-heading No. 8485.90. Shri Nankani states that the appellants have not filed any appeal against the de novo decision classifying the products under sub-heading 8485.90. He clarified that they are seeking a relief against the order of remand through this appeal and claiming classification under 81.01 for these items. He further states that the appellants have also filed an affidavit before the Tribunal justifying an alternate claim for classification under Heading 81.13 as cermets and articles thereof. Shri Nankani, however, fairly states that the rates of duty under Heading 81.13 and 8485.90 were the same for most part of the period in dispute.
2. As far as the goods at Serial Nos. 10 to 27 are concerned, Shri Nankani states that the impugned order has upheld the classification by the department under Heading 82.09 whereas the appellants are claiming classification under Heading 84.66 in respect of these items. Shri Nankani had made a claim for alternate classification under Heading 81.13 but on an objection from the Shri Hitesh Shah, learned JDR that no affidavit has been filed for these items, and that the claim is only oral, Shri Nankani limited his argument to the claim for classification under Heading 84.66. Both Shri Nankani and Shri Hitesh Shah took us through the entries and explanatory notes in the HSN as well as the Excise Tariff and the technical literature submitted along with drawing. It was also pointed out that the printed tariff available makes a reference to Heading 82.04 under Chapter Note 1 in Chapter 82 of the Excise Tariff whereas there is a reference to Heading No. 82.09 in the HSN and the Customs Tariff. In the absence of an authentic official text of the Excise Tariff, it could not be established whether reference to Heading 82.04 in the said chapter note is a typographical error or a deliberate departure from the Customs Tariff. Moreover, there were claims and counter claims by both sides with reference to technical literature and drawing as to whether the impugned goods at Serial Nos. 10 to 27 are parts of machine requiring classification under Chapter Heading 84.66 or they were part of tools requiring classification under Heading 82.09. The learned JDR cited the case of CCE, Vadodara v. Rapicut Carbides Ltd. – 2000 (119) E.L.T. 403 (Tribunal) classifying similar products under Heading 82.09. The learned counsel on the other hand stated that the ratio of the said case law cannot be applied as the order does not consider a claim for classification under Heading 84.66. He further states that in Rapicut, the Tribunal has preferred classification under Heading 82.09 rejecting the claim for classification under Heading 81.01 but did not have any occasion to consider alternate classification under Heading 84.66.
3. The learned JDR states that new points can not be raised for fresh classification at the appellate stage in view of the decision in the case of Warner Hindustan Ltd. v. Collector of Central Excise, Hyderabad – 1999 (113) E.L.T. 24 (S.C.). The learned counsel to the appellants cites the following case laws in support of his argument :-
1. Voltas Ltd. v. Collector of Customs, Bombay – 1997 (91) E.L.T. 261 (S.C.)
2. Goodyear India Ltd. v. State of Haryana and Ors. – 2001 (6) Supreme Court Cases 112.
4. After hearing both sides and perusal of case records including cited case laws, we find that as far as the Item No. 9 is concerned, the learned Counsel is not pressing the appeal, therefore, classification ordered in the impugned order is upheld. As far as Item Nos. 1 to 8 are concerned, we find that the matter was remanded to the lower authorities and during the de novo proceedings the appellants have fully participated in the same and they were free to urge any ground including claim for alternate classification under Heading 81.13 during the de novo proceedings. It was also open to them to challenge the de novo decision classifying the products under sub-heading 8485.90. Since they have not done so, the matter has assumed finality. In any case, the learned counsel has stated that the duty rates under sub-heading 8485.90 and Heading 81.13 were the same for most part of the disputed period and therefore, classification under one heading or the other is not of much significance from the point of view of duty liability. In any case, the appellants are not precluded from asking for change of classification for the future period and therefore, we are not inclined to interfere with the impugned order of remand which has already been given effect to by a de novo decision by the original authority.
5. As far as the items at Serial Nos. 10 to 27 are concerned, we are inclined to agree with the learned Counsel that the cited decision of the Tribunal in the case of Rapicut (supra) has not considered the claim for classification under Heading 84.66 which the appellants are claiming in this case. After hearing both sides and perusing the technical literature and drawings submitted before the Tribunal, we are of view that each of these items requires to be considered carefully with reference to the exact positioning of the item in the machine as well as its functions to be able to come to a finding as to whether each of these item can be classified either as a part of tools under Heading 82.09 or as a part of machinery under Heading 84.66. It may also be necessary to physically examine the products in question and the machinery in which they are used and the way they are used. It is quite possible that the detailed examination may result in classification of some of the items under Heading 82.09 and some may have to be classified under Heading 84.66. Such detailed examination with reference to items in question can only be done at the level of the adjudicating authority. As such, we think it fit to set aside the impugned order in respect of these items and remand the case back to the adjudicating authority for a fresh decision. Both sides will have the opportunity to produce all the documentary and other evidence before him and assist him to come to a finding regarding the correct classification of these items.
Appeal is partly allowed in the above terms.