Judgment:
1. This is an appeal against the order of the Commissioner of Central Excise, Vadodara. In that order, adjudicating on the notice issued to the appellant, the Commissioner has confirmed the classification under Heading 8483.00 of the tariff pinion manufactured by the appellant and confirmed the differential duty consequently payable on the clearance of these goods. He has also imposed a penalty on the appellant.
2. We have heard the representative of the appellant and the Departmental Representative.
3. It is first contended on behalf of the appellant that the pinions are rightly to be classifiable under Heading 72.26 as parts of general use. We are unable to accept this contention. The appellant does not dispute that the pinion is a gear. McGraw Hill Dictionary of Science and Technology defines it as a "smaller of a pair of gear wheels or the smallest wheel of a gear train". We do not see how merely because it is manufactured out of hot rolled bars and rods of Heading 72.28 it falls under Heading 72.26.
4. It is alternatively contended that the pinion should be classifiable under Heading 84.12 as the other engine air motor. The basis for this is a Trade Notice 95-C.E./90, dated 30-8-1990 issued by the Chandigarh Collec-torate that transmission elements like gears, gearings, gear trains, gear boxes etc. specifically designed for use with vehicles of Section XVII of the tariff, would be classifiable as parts of vehicles under the appropriate headings -86.07, 87.08 or 87.14.
5. We are unable, on examination, to agree that the classification determined by the Board is correct. Gears and gearing are specifically mentioned in Heading 84.83. The Explanatory Notes to the Harmonized System of Nomenclature on which the heading is based, specifically mentioned rack and pinion gear, we have already noted the definition of pinion in the McGraw Hill Dictionary of Science and Technology. The basis for the Board's view is Note 2(e) to Section XVI of the tariff which excludes inter alia articles of Section XVII from the scope of Chapter 84. Note 2(e) to Section XVII inter alia provides that the expression "parts" does not apply inter alia to machines and apparatus of Headings 84.01 and 84.79 and parts, thereof articles of Heading 84.81 or 84.82, and provided they constitute integral part of engines or motors of Heading 84.83. In our opinion, the conclusion of the Board's view is questionable. However, we do not propose to pursue this further; The Board has concluded that such transmission elements, if specially designed for use with vehicle of Section XVII of the tariff, would be covered as parts of vehicles under the appropriate Heading 86.07, 87.08 or 87.14. The appellant has explained that pinion manufactured by it was a component of an air motor, which was an internal component of an underground mining machinery. It is not possible for us to conclude, from the material on record, that such machinery would be classifiable in any of three headings mentioned in the Board's circular. That circular therefore will not apply.
Therefore, we must confirm the classification under Heading 84.83.
6. It is next contended that the extended period of limitation will not be available to the department because there has been no suppression; the appellant had declared the goods in its classification list as it cleared the goods during part of the period as part of an air motor and during the remaining period as a part in Heading 84.83. This includes parts suitable for use solely or principally with the machinery of Headings 84.25 to 84.30 - pulley tackle and hoists other than skip hoists, winches and capstans; jacks, fork-lift trucks, other works trucks fitted with lifting or handling equipment etc. other lifting, handling and loading or unloading machinery; bull-dozer and similar machinery; other moving grading, levelling, scraping etc. machinery.
The conclusion of the Commissioner from this is that the appellant had not declared at any time the goods under consideration as pinion. We do not see how from the description of the goods either as parts or motors or part of any of the other machinery that we have briefly referred to, the departmental officers would have been in a position to conclude that the goods, the classification 'of which they approved as claimed, were, in fact, gearing or gear. We are therefore of the view that the extended period of limitation has rightly been invoked. The ratio of the Supreme Court's judgment in Rainbow Industries v. Union of India 1994 (74) E.L.T. 3 will not apply.