Full Judgment
"SI 35 - Industrial and Laboratory furnaces and ovens non-electric or electric...." "When the learned Advocate was asked to indicate whether the imported device has the automatic temperature regulation device, the lever for turning and tilting, turning handle, control lamp to indicate whether the machine is working or not, he submitted that these parts have not been imported but the device can function in the absence of the said parts. In the absence of the above parts, the machine cannot discharge the functions that an oven is supposed to discharge. In the absence of the panel and the items, it may not be possible to operate it. Therefore, I find no grounds to differ from the findings of the learned Assistant Collector that the device imported by the appellants is not a complete oven but parts of the oven which are later to be assembled. Notification No. 179/90-Cus., dated 31-5-1990 grants benefit of exemption from auxiliary duty to goods which are a complete oven as commercially understood and not parts thereof. Therefore, the benefit of exemption is not available in the instant case." 3. The learned Counsel for the appellants has reiterated the grounds in the appeal and submitted that the imported goods are a substantially complete oven which has assumed the characteristics of oven and as per the classification rules, it has to be classified as 'oven' and not 'parts thereof and would therefore be eligible for the benefit of the Notification which has been denied to them. To a specific question as to why they have not appealed against the classification as parts by proper officer under 8514.90 and raising the basic customs duty from 35 to 40%, the learned Counsel replied that he was seeking the benefit of auxiliary duty of 15% as eligible to oven and no claim for change in the classification was therefore made. He added that their claim for the benefit of 15% auxiliary duty should not be denied to them, merely on the ground that classification as parts of the subject goods has not been challenged when in fact the goods imported are essentially oven.
4. Heard the learned PR who submitted that the goods have been classified as parts under 8514.90 and the Notification does not entitle the benefit to such parts, since a plain reading of the Notification would indicate that it is only the goods mentioned therein viz.
Industrial and laboratory furnaces and ovens non-electric or electric which fall under 84 or 85 are exempted from levy of auxiliary duty.
Parts falling under 8514.90 are not mentioned by name in the Notification. Therefore, even if they fall under Chapter 85 it will not entitle them to the benefit of this Notification for auxiliary duty. He also supported the order of the Collector (Appeals) and submitted that since there was no ground available for admitting this appeal, the same may be rejected.
4. We have carefully considered the submissions made and find that HSN notes define parts that are eligible for classification under 8514.90 which includes panels which in this case which have been procured locally. A reading of HSN notes indicates that specific heating enclosed space should be considered as oven and what has been imported in this case could be oven. However, we find that classification of the goods under import was not challenged when they were classified as parts, before the Collector (Appeals). The challenge was only on the ground that even parts of oven were eligible for the exemption from auxiliary duty under relevant Notification as amended. We find no merits in the submissions made before us that even if the classification made by the lower authorities is not challenged the imported goods are oven and should be granted the benefit of the Notification. We find that we cannot take up an issue which was not before the lower authorities and therefore we find that when the goods have been accepted by the appellants themselves and by the lower authorities to be classifiable as parts of oven and that classification was not challenged, we have no material to classify it as ovens under 8514.30, we cannot read the Notification 139/90 as amended to cover exemption to parts of oven and therefore we find no infirmity in the order of the Collector (Appeals) and we uphold the same and find no reason to admit the present appeal.