1.2 (a) Respondents imported, at Sikka Port, Gujarat, certain equipments for use in the refinery premises spread over a large area, to assist erection of Heavy Equipment of the refinery being set up.
They filed a Bill of Entry No. F-116 dated 31.1.98 declaring the goods, sought for home clearance as The Bill of Entry was assessed provisionally on 21.2.1998 and the goods as declared were granted the benefit of Notification No. 11/97-Cus.
dated 1.3.1997 as amended by Notification No. 55/97-Cus. dated 13.6.1997.
(b) Bill of Entry was finally assessed on 24.12.99 classifying Heady Duty Platform Ringer Crane with spares in Chapter 8426.19 and 8 Nos.
SPMTS with 6 Axle and with 5 power packs in Chapter sub-heading No.8704.90 enhancing the value of Platform Ringer Crane and SPMTS and denying the benefit of exemption under Notification No. 11 /97 as amended by Notification No. 55/97.
(c) Respondent preferred an appeal before Commissioner (Appeal), Central Excise & Customs, Ahmedabad.
(d) Commissioner (Appeal) ordered that "the value declared in the invoice is true and fair under Section 14 of Customs Act, 1962. The differential duty worked out in the present case based on the final assessment on the Bill of Entry is not sustainable. The final assessment made on the Bill of Entry stands modified and the appeal is allowed. Hence this appeal.
(i) "The value declared by the importer in the bill of entry was ingenuine and inadequate inasmuch as three invoices No. 001, 002 and 003 all dated 3.1.1997 accompanied the imported goods indicated that the value shown therein was for "Customs Purpose Only". In other words the three invoices raised for the said goods were not meant for Commercial Transaction as the goods were imported on returnable/re-export basis. In the circumstances, in order to ascertain value of similar or identical goods, service of an appraising officer with expertise in valuation of Machinery was sought from JNPT, Mumbai. Accordingly appraising officer from JNPT, Mumbai rendered his services for examination and valuation of the said goods.
(ii) In his first report dated 10.2 (sic) examining the said goods at Sikka, the Machinery Experts, opined that Six Line Trailers SPMTS (Self Propelled Modular Transport System) supplied alongwith the Platform Ringer Crane cannot be treated as One Unit i.e. Mobile Trailers nor the crane and trailers were specially designed for each other forming an integral mechanical unit and accordingly suggested assessment of cranes and Trailers, separately. He further opined that value declared for Platform Ringer Crane including 8 Nos. Six Line Trailers (SPMTS) does not appear adequate while comparing the value of similar six line trailers imported at JNPT vide Bill of Entry No. 490 dated 4.12.97 in the year of manufacture (1994) i.e.
DFL 6,00,000.
(iii) The benefits of Notification No. 55/97-Cus. dated 13.6.97 were available only to Mobile Crane (Sr. No. 44 of the list annexed to the Notification No. 55/97-Cus) whereas the examination report furnished by the expert appraiser vide his report dated 10.2.98 revealed that the Crane imported by the importer is a Stand alone Crane which is placed on the grounds with its hydraulic jacks resting on spreaders boards in a working configuration. It therefore appears that the crane imported is not a mobile crane hence benefit of Notification No. 55/97-Cus., dated 13.6.97 cannot be extended to the crane in question The 8 Nos SPMTS with five Nos power packs imported and cleared provisionally alongwith other goods and declared under captioned "Heavy Duty Platform Ringer Mobile crane and Grove MZ-90 Skyworker Mobile Crane" in the Bill of Entry at Col (6) were correctly classifiable under Sub-heading No. 8704.90 of the Customs. Tariff separately inasmuch as similar and identical goods imported and cleared vide Bill of Entry No. 490 dated 4.12.97 at JNPT, Sheva, by M/s CRC International Freight Services Ltd., Jamnagar were classified under the very heading i.e. 8704.90 of the Customs Tariff Act, 1975. Therefore, the 8 Nos SPMTS with five Nos power packs being classifiable under Sub-heading No. 8704.90 of the Customs Tariff are excluded from the purview of exemption Notification No. 11/97-Cus., dated 1.3.97 as amended by Notification No. 55/97-Cus., dated 13.6.97 as the same was not appearing in the list annexed to the said Notification. Accordingly Customs Duty as applicable to Sub-heading No. 8704.90 of the Customs Tariff read with Notification if any, would be leviable on the said SPMTS (Trailers) with power packs.
(iv) The Machinery expert submitted his further report on 24.5.99 after examining the valuation aspect of the goods, i.e. "Heavy Duty Platform Ringer Crane", in detail. It was then observed that the value declared for the subject Crane imported at Sikka with 8 Nos SPMTS (Trailers was US Dollar 3484500 GIF equivalent to Rs. 13,58,95,500 whereas the value noticed for similar 8 Nos SPMTS of 1994 make without Crane, imported at Jawahar Customs House vide Bill of Entry No. 490 dated 4.12.1997 was DFL 60,00,000 equivalent to Rs. 11,86,20,200 in the year of manufacture. Therefore, the value declared for the subject goods i.e. "Heavy Duty Platform Ringer Crane" which was inclusive of the value of 8 Nos SPMTS appears not adequate having regards to its configuration and specification which obviously give rise to strong suspicion as to the genuineness of the value declared for the subject goods, In the Platform Ringer Crane manual and other printed literature, including 2 Nos news letter of Van Seumern for 1997 and 1998 taken over by the examining officer at the time of the examination of the goods, comparison of the specification of 4 Nos big Cranes was given in the news letter of 1998 as follows: The Crane listed at Sr. No. (4) above was the one imported at Sikka by the importer. This crane was found comparable with the Crawler Crane CC 12600 listed at Sr. No. (3) above as the rated capacity of both the crane was 1600 tons as indicated in the said news letter. The purchase price of crawler Crane CC 12600 as indicated in the news of letter of 1997 was DM 25 million, equivalent to Rs. 54,50,00,000 @ IDM= Rs. 21.80) whereas the value declared for the present one imported at Sikka with 8 Nos. SPMTS was USD 3484500 equivalent to Rs. 13,58,95,500 which was approximately four times less than the value of similar crane of same capacity.
As per Exhibit C of the Contract No. 22960-SG-HCS dated 20.11.97 a lump sum price of USD 59,89,000 (i.e. Rs. 23,35,71,000) was to be paid to the contractor by the importer for execution of work with the Crane in question which supports the doubt that the value declared for the Crane imported by the importer was not genuine and adequate.
The Crawler Crane CC-12600 was Mobile Crane while the one imported by M./s Reliance Petroleum Ltd, at Sikka was a stand alone crane with the mobility of the same being provided by use of 8 Nos. SPMTS. Therefore, besides capacity, the operational feature of the crane imported by the importer with 8 Nos. SPMTS was comparable with the Crawler CC-12600.
The value indicated for Crawler Crane CC-12600 can therefore be justifiably adopted for the Crane imported by M/s Reliance Petroleum Ltd., at Sikka, alongwith 8 Nos. SPMTS with necessary deduction and depreciation in value. Accordingly the value of Crane stand alone Crane has been worked out to Rs. 38,36,80,000 and the value of 8 Nos SPMTS with five Nos power packs has been arrived at DFL 23,73,300 equivalent to Rs. 4,58,04,690 (@ 1 DFL=Rs. 19.30) It is not correct to say that the lower authority (the authority who is empowered to finally determine the amount of duty specified in the notice issued under Section 28 of the Customs Act, 1962) would have said the same thing which has been enumerated in the Show Cause Notice issued by the lower authority as the issuing authority is a Superintendent of Customs House, Sikka is different than the adjudicating authority which is the Deputy Commissioner of Customs, having his office at Jamnagar. The party in their Memorandum of Appeal have admittedly stated that they have received a Show Cause Notice from the lower authority (and not an order confirming the demand) and still preferred to plead their case before the Appellate authority on merit. The apprehension of the parties that the authority competent to determine the amount specified in the notice would have said the same thing which has been enumerated in the Show Cause Notice by the lower authority, is unfounded for the reason that the scheme of thing is such that the authority specified in Sub-section (2) of Section 28 of the Customs Act, 1962 is the final authority to determine the ultimate scope of the notice issued by the lower authority. As correctly narrated in the para 2 of the Order-in-Appeal, the parties have been served with a demand cum Show Cause notice issued under Section 28 of the Customs Act, 1962 proposing to recover the differential duty of Rs. 13,62,92,602.
There is no bar in the Customs Act, 1962 to issue the show cause notice under Section 28 -- where there has been final assessment. If this principle that the lower authority who has issued show cause cum demand notice would confirm the same on the same grounds is accepted then there is no need to pass any adjudication order in any case and show cause notice itself will become an appealable document.
2. As regards the party's claim that they have imported Mobile Crane as one integral unit, it is submitted that the Crane imported by the parties was a Stand-alone Crane which is placed on the ground with its six numbers hydraulic jacks resting on spreader boards in a working configuration, while the eight No. SPMT'S or Six line Trailers with or without power packs which the parties have claimed as integral part of the Crane, are independent equipment of the main equipments viz.
Platform Ringer Crane.
2.1 Further the platform Ringer Crane imported by M/s. RPL is not a wheeled device with its own motive power which enable it to move over-wide areas. The crane imported requires a whiled device to give it mobility and enable it to move from one places to another place. It is also a fact that platform Ringer Crane cannot be operated while it is set on 8 no. SPMTS, as it is on its own working configuration.
2.2 The facts are that the parties had imported Mobile Crane. In fact, the importer has imported Heavy duty platform ringer crane which only rotates on its own but does not move from one place to another on its own and some device to move the same is required to render mobility to it and therefore, Hon'ble Commissioner (Appeals) contention that the M/s. RPL has imported Heavy Duty Platform Ringer Mobile Crane and Grove MZ 90 sky worker Mobile Crane is far from facts of the case.
2.3 While the Crane imported by the appellants is admittedly a platform ringer crane, the same cannot by any stretch of imagination be considered as mobile crane nor be called as such, in common trade parlance as the operational features of the crane imported by the parties are not linked with its mobility.
2.4 The 8 (eight) number SPMT's (Self Propelled Modular Transporters) merely play the role in moving the platform ringer crane from one place to other by simply placing the trailers under the ring base by raising the parking pads, without affecting the operational efficacy of the crane, in any way.
3. In para 3 Page 7 of the Order-in-Appeal Hon'ble Commissioner (Appeals) has placed reliance on the Hon'ble Bombay High Court's ruling in the case of M/s. Randeep Shipping and Transport Co. Pvt. Ltd., wherein the Hon'ble Court has taken judicial notice of the definition of a mobile crane in the Encyclopedia Britannica which is as follows : "Mobile Cranes are wheeled devices with their own motive power, which enables them to move over wide areas, they are generally of the jib type with a single boom attached to the mobile body". Hon'ble High Court in that case held that in the above-mentioned case since the crane had moved over wide areas and it had wheels which enable it to move from place to place and the crane had its own motive power as the crane was pneumatically propelled. The crane was a mobile crane. But in the present case, the platform ringer crane imported by M/s. RPL does not meet any of the criterion as enumerated by the Hon'ble High Court, for classifying the above crane as a mobile crane as discussed below: I. The High Court has held that Mobile cranes are wheeled devices with their own motive power but the current crane in question is a ringer crane which does not have any wheels and it, does not have its own motive power. When the crane has to work in a particular location the crane has to be brought on that particular location and the crane is made to stand on its 36 hydraulic jacks on specially prepared foundations. For working at a particular location the ballast of approximately 1500 tonnes is to be added to the ring of the crane. For moving the crane to another location, the ballast is to be removed from the ring and then the self-propelled trailers are to be placed under the ring. These removable self propelled trailers can be used for other works also.
II. Further, in the present case, the 90.4 mtrs main boom and 35.7 mtr jib was also not attached to the mobile body.
III. Hon'ble Commissioner (Appeals) has further relied upon the Hon'ble Tribunal's judgment in the case of TTG Industries Ltd., 1997 (95) ELT 489 in that case crane had 16 wheels and tribunal held that appropriate classification of the crane designed to handle heavy load of 90 ton or more with a collapsible boom to carry loads to a height and which has 16 tyre wheels the axle of which were specially designed for taking the crane load would be under 8426 and not under chapter 87. The ratio of the above-mentioned judgment is also not applicable to the present case as the present. Heavy duty ringer crane cannot move on the wheels and the trailors used tomove this crane from one place to another are general purpose trailors and not the specifically strengthened axle and trailors. The crane has no tyre wheel base to render it mobility and when the trailors are put below the ring of the crane to move crane the crane cannot function i.e. it cannot lift any load. Further the trailors cannot take the full load of the crane. Before moving the crane the load and ballast of upto the 1500 ton is to be removed from the ring of the crane.
4. As per para 7, the contention of the Commissioner (Appeals) that the parties have imported mobile crane technically known as heavy duty platform ringer mobile crane and groove M7 90 sky worker mobile crane is incorrect as much as all the technical literature as per Annexure-A.The contract between the M/s RPL and suppliers M/s. Europa BV describes it as platform twin ringer heavy duty crane. Nowhere, except, the bill of entry and the invoice the word mobile crane is mentioned. Even the plate marking on the platform ringer crane describes it as follows : 5. Further, in para 7 of the findings in Order-in-Appeal the Commissioner (Appeals) has found that this crane is mounted on 8 SPMTs which is incorrect inasmuch as the crane is not mounted on 8 SPMTs but it works mounted on 3C hydraulic jacks stationed on specially prepared base for taking the load. Thus, the 8 SPMTs are used only for relocation the crane from one work area to another work area. These 8 SPMTs cannot take the load of the crane i.e. while working the crane cannot be mounted on SPMTs. In the contract they have mentioned everywhere crane and SPMT differently and the Mobile grove MZ crane have also been mentioned separately therefore from the contract itself party have been aware that SPMT and Crane are separate machines.
6. Crane mounted on ringer platform rotates on ringer platform and the crane imported does not have any wheels or chassis fitted with wheels.
It is the SPMTs : a separate independent device which was used to transport the crane from one place to another and these SPMTs are not specifically designed for the crane imported by the party as is evident from the fact that the SPMTs and Crane are manufactured by the different, manufacturer in different country in the different year of manufacture. These SPMTs are general purpose devices used for transportation of heavy equipments. M/s. Reliance Petroleum Ltd., themselves have used the similar SPMTs, of the same manufacturer and capacity in the setting up of Crude Oil Refinery (as per the tripartite agreement with M/s. Mammoet and M/s. CRC) imported by M/s. CRC International Fieght Services Ltd., cleared vide bill of entry No. 490 dated 4.12.1997 at Jawahar Customs House Nhava Sheva and which were re-exported by M/s. Reliance Petroleum Ltd., from Sikka under Shipping bill No. 13 dated 31.7.98. The SPMTs imported by the party for the transportation of heavy equipments are altogether different, commodity in common parlance, commercial parlance, & in its technical meaning.
Therefore, the said two units can in no way be classified under Chapter Sub-heading No. 84.26 and are rightly classifiable under Chapter sub-heading No, 8426.19(Crane) and 8704.90 (SPMTs).
7. The platform ringer crane imported by the parties is not capable of moving itself with its own motive power for enabling it to move over wide areas, without the support of 8 No. SPMT's of 6 line trailors. It is also an admitted fact that the platform Ringer Crane cannot perform while it is mounted on the 8 Nos., SPMTs.
8. As pei1 para 9 of the OIA passed by Hon'ble Commissioner (Appeals), Ahmedabad 8 SPMTs are integral part of Platform ringer crane but as discussed in above paras, SPMTs are manufactured by different company they have been manufactured in the different year and they are not a part of the crane as discussed above. So their classification is to be done under 8704.20. Further as per the judgment cited in the OIA if the cranes are cleared, assembled, erected and installed at the site must be classified on the complete crane. As per this judgment the present ringer crane when assembled, erected and installed at the working site the SPMTs are to be removed from below the ring of the crane to make it functional. Thus, the SPMTs are not party of the crane. There is no doubt that the crane is to be classified under 8426.19 when fully assembled, erected and installed at the site. And the SPMTs are to be classified separately under Chapter sub-heading No. 8704.90 of the Customs Tariff Act as they are not a part of the crane when it is fully assembled, erected and installed at the working site. This is also clear when referring the contract made by M/s. RPL while entering into the agreement with the foreign supplier for supply of heavy lift, the party have mentioned Crane and SPMTs separately. In the contract they have correctly mentioned the rate of Customs Duty applicable to Crane and SPMTs respectively.
9. Now as per para 10 of the Order-in-Appeal the Commissioner (Appeals) has given the benefit of the Exemption Notification No. 11/97 as amended classifying the above crane as mobile crane. Further, as already discussed above, if this crane is to be considered as a mobile crane then all cranes can be classifiable as Mobile Cranes.
10. Alternatively, considering the mobile crane as material handling equipment. The definition of the Material handling equipment have been taken from Encyclopedia Britannica. First as discussed in the above paras this crane is not a mobile crane so the benefit of exemption is not available. Secondly, regarding the materials handling equipment the definition of Materials handling and Materials handling Equipment as given in Encyclopedia Britannica defines materials handling as follows: Materials handling, the movement of raw goods from their native site to the point of use in manufacturing their subsequent manipulation in production proceses, and the transfer of finished products from factories and their distribution to users or sales outlets." 10.1 The full definition is enclosed in Annexure. The harmonious reading of the judgement and the above definition clearly indicates that it is for handling of the raw goods or handling of goods in production process and transfer of goods in finished products. In common parlance, the material handling equipments would be different from the construction and erection machinery. Such a heavy piece of equipment which is used for installation of heavy machinery is to be classified as construction and erection machinery and not as materials' handling equipment.
11. Regarding the para 11 of Order-in-Appeal and as regards the valuation, the machinery expert appraiser has given the valuation of crane and SPMTs separately which is correct as discussed above as they are separate items.
11.1 The machinery expert has decided the value of the goods as per rule 8 of the Customs Valuation Rules since, no transaction value was available and no import of similar goods, in case of ringer crane was available. Since, the value declared in the invoice is for the Customs purpose only and no transaction of foreign exchange at the invoice value took place so the declared value under Section 14 of the Customs Act, 1962 as per the invoice cannot be taken. The stand of Commissioner (A), Ahmedabad that there is no dispute not any evidence that the appellants have remitted any extra payments clandestinely to the foreign suppliers over and above the invoice value is not relevant in the present case since no Foreign exchange was remitted even at the invoice value.
12. Further, as per the contract for the work to be performed by the crane, M/s. RPL, contracted to pay 5989000 US S (Five million nine hundred eight nine thousand US Dollars) to the contractor including the work to be performed by one other mobile crane grove MZ 90 and one Fork lift Maniton HT 3500. The value of the whole sure along with the SPMTs declared by the party is only 3484500 US $ (Three Million four eighty four thousand five hundred US Dollars). The total value for the other two items Mobile Crane Grove MZ 90 and Forklift Maniton HT 3500 is 111725 US $. If we add the declared value of all the three items together it comes to 3596225 US $ (i.e. Three million five hundred ninety six thousand two hundred twenty five US Dollars only) which is much less than contract price for the work to be done by the crane and SPMTs and other two items. If the declared value represents the four market price of the crane and SPMTs then it would make much more economical sense to purchase the above machinery to get the above work done.
13. Further regarding the 8 SPMTs, since they are of the same make of as imported to Jawahar Customs House, Nhave Sheva, Mumbai but of different year the valuation arrived by the machinery expert is correct and proper. Further, the valuation report of the machinery expert is very clear and precise and has correctly determined value by taking resort to the residual method as per the Rule 8 of the Customs Valuation Rule 1988 using reasonable means.
14. Regarding the transportation charges from anchorage to jetty of The Corommandal Fertilizers Ltd. v. Collector of Customs, 2000 (115) ELT 7 (SC) relates to the valuation matter and Supreme Court held that any amount for stevedoring or unloading charges cannot be added when landing charge is assessed on percentage basis. The valuation aspects for the goods imported by M/s. RPL is of transportation charges incurred from anchorage point to the jetty. The Judgement of Corommandal Fertilizers Ltd., is for loading and unloading goods from jetty to the ship when the ship is berthed at Jetty which is declared as landing point and is the land mass of India. While in this case of M/s. RPL transportation charges from anchorage point to Jetty, is proposed to be added in assessable value. Therefore, ratio-decidendi of Corommandal case would not be applicable in the case of M/s. RPL and transportation charges incurred for bringing the goods till the land mass of the country would be included in the assessable value and is not covered by landing charges as per Customs Valuation Rule, 1988.
This issue was referred to the board by head-quarters where it was clarified that this charges are to be added to the assessable value.
On the basis of the above grounds, it is prayed that the Order-in-Appeal passed by the Commissioner (Appeals) may be quashed and set aside.
2.1 After hearing both sides, and considering the material on record, it is found: (a) The Commissioner (Appeals) has entertained an appeal against an assessment made by the proper officer on a Bill of Entry on finalization of the same assessed provisionally and finding that the issues about which the assessment of the Bill of Entry has been finalized, are the same, as stated in a Show Cause Notice issued separately, and if the Respondents had replied to that notice, the lower authority who assessed the Bills of Entry, would be dealing with the same question of determination; in the assessment in this case already made and arrived. They would therefore say the same thing; reply to the notice issued would therefore be a futile exercise. Therefore, he accepted the plea to decide the issue on merits, in the appeal against final assessment on a Bill of Entry.
Revenue is aggrieved. We do not find any reason to uphold the Revenue's grievance in this regard. The Larger Bench of this Tribunal, in the case of CC v. Arvind Export, 2007 (130) ELT 54 (LB) and Ors cases this Tribunal has held, that an appeal can be filed against an order of assessment on the BE. Revenue otherwise always insists upon, and the Supreme Court vide the decision in the case of Priya Blue Industries Ltd. v. CC (Preventive), 2004 (96) ECC 217 (SC): 2004 (64) RLT 322 (SO has upheld, that if the assessment orders as effected on Bills of Entry were not challenged, refunds cannot be granted. Challenge of assessment order on BE assessed can be made by an appeal to Commissioner (Appeal). Therefore, there can be no grievance against the Commissioner (Appeal), in having accepted an appeal of the Respondents against final assessment of BE and redetermined the assessment by modifying the one, as arrived at by the final order of assessment by the proper officer on the subject Bill of Entry. Grounds in this regard and fears expressed need not be entertained to upset the order CC (Appeal).
(a) It is found that all kinds of cranes are to be classified under Heading 84.26 which covers a number of intermittent action, lifting or handling machines. The Heading under HSN divides all such overhead travelling cranes, transporter cranes, gantry cranes, bridge cranes, mobile lifting frames and straddle carriers as per the sub-headings given below: 8426.11 - Overhead travelling cranes on fixed support 8426.12 - Mobile lifting frames on tyres and straddle carriers 8426.19 - Other 8426.20 - Tower cranes 8426.30 - Portal or pedestal jib cranes - Other machinery, self-propelled: 8426.41 - On tyres 8426.49 - Other - Other machinery: 8426.91 - Designated for mounting on road vehicles 8426.99 - Other The HSN notes for self-propelled and other mobile machine provide that the heading would cover not only fixed or stationery machine (with certain exceptions referred to under the Notes), it would cover machines mounted on transport equipment of the type falling in Section XVII and also mobile machines whether or not self-propelled. The Notes provide that machines mounted on vehicles proper and used for lifting or handling are to be classified under Heading 86.04 when they are so mounted on wagons or trucks suitable for coupling to a train designed to run on a railway network of any gauge. Therefore, the railway breakdown cranes or crane, wagons or trucks for use of the railways or of loading and unloading depots would be covered under Heading 86.04 and self-propelled vehicles for the servicing and maintenance of railway tracks would be covered under Heading 86.04. However, such of the lifting or handling machines even though mounted on trucks or platforms not meeting the specifications of rolling stock would remain classified under Heading 84.26; the examples cited are such cranes which are mounted to run on rails but are servicing building sites, quarries etc. Therefore, in the present case when the Ringer Crane is mounted on transporting equipment and together they do not qualify to be Motor Vehicle of Chapter 87, they would remain classified under heading Chapter 84.
(b) Reading of the Notes as regards machines mounted on tractors or motor vehicles proper to Chapter 87, indicates that certain working parts of the machines of the crane are mounted on tractors constructed essentially for hauling or pushing another vehicle, appliance or load, and like agricultural tractors are fitted with simple devices for operating the working tools and such working tools are subsidiary equipment for occasional work. Such mounted cranes primarily for hauling pressing or changing the site of operation would be classified under Heading 84.26 or under Heading 8431 even if presented with the tractor (whether or not mounted thereon); such tractors, with its operating equipment are to be classified separately under Heading 87.01. The notes on machines mounted on Tractor type bars under 84.26 read- "On the other hand, this heading covers self-propelled machines in which the propelling base, the operating controls, the working tools and their actuating equipment are specially designed for fitting together to form an integral mechanical unit. This applies, for example to a propelling base resembling a tractor, but specially designed, constructed or reinforced to form an integral part of a machine performing one or more of the functions mentioned in this heading (lifting, handling, etc.). Presented separately, such propelling bases also fall in this heading, as incomplete machines having the essential features of complete machines of the same kind.
Propelling bases potentially classifiable in several of the headings 84.25 to 84.30 because they can be equipped with several different working parts, are classified in accordance with Note 3 to Section XVI or by application of Interpretative Rule 3(c).
The Note 3 to Section XVI that when a combination of machines, the Ringer and propellers imported in this case are intended to contribute together for a clearly defined function, governed by one of the headings in Chapter 84, lifting special machinery in this case at different sides, then the whole folk to be classified in the heading appropriate to that function. Therefore, propelling base in this case, which is presented as imported alongwith ringer crane cleared on the same BE, consisting of 8 haulage SPMTs in this case, are not elements presented separately for assessment in this case. They have been imported as a specific configuration set alongwith the Ringer Crane, platform etc. The word "presented separately" in the chapter note has to be interpreted "Imported Independently of a lifting device of a Crane" and not when the import is alongwith such lifting device of Crane and platform, it has to be placed under 84.25 to 84.30, when sought for assessment & presented to be cleared on same BE as a set.
Chapter Note 3 to Section XVI would call for such a classification. The notes are being misread by Revenue. We find no reason to classify the propelling configuration platform of 8 SPMTs separately, in this case, than the Ringer Crane. Classification has to be under heading 84.26 and not under 8701 on the reasons as stated in the background of the case and or the grounds adopted. We find no reason to consider the SPMTs to be an independent equipment imported and presented for classification separately in the facts of this case, and on the grounds as made out.
(c) The uncontested role played is to render the operations of the crane useful at different locations, at the Refinery site, for which it has been imported; how it functions to lift a particular load i.e.
while on the moving platform or on its jack, is not relevant to rule out its common understanding to be as a Mobile Crane'. A 'Mobile Crane' would be one which can perform its function at different locations; a crane that can move with the load to different sites would be a "Travelling Crane" like on EOT crane, while a crane on propelling platform haulage tractors or guided on rails, capable of operations at different sites would be a Mobile Crane.
(d) We find the distinction being made by Revenue of the tribunals decision in the case of this Tribunal reported in 1997 (25) ELT 482 to be not called for. CCE(A) reliance on the same is to be upheld.(e) The ground urged of the word "mobile" not mentioned in the contract or the markings and the finding of the CC(A) about the crane being mounted on 8 SPMTs being therefore incorrect in as much as the crane works on 36 hydraulic jacks stationed on specially prepared base for taking the load and SPMTs being used only for relocation from one side to another, does not enthuse us to classify the SPMTs separately when they are presented as imported together. Surely all elements/components as envisaged under note 3 to Section XVI cannot work simultaneously all the time. A Component machine will function only when the ascribed function is called for. Propelling base SPMTs would be called for in use to change the location in this case and change in location need not be with the load lifted since it is not a travelling crane. The import of SPMTs is admittedly is to import mobility to the Crane to operate at different places. A 'mobile crane as would be understood has to be a crane which can move and relocate; as to how it functions at different sides i.e. mounted on its propelling mechanism or otherwise or partly on the propelling mechanism and partly on jacks to gain leverage for lifting will not disentitle it from being 'mobile'.
(f) The ground taken of SPMTs have been assessed independently and cleared at Jawahar Customs House and used by same appellants in the setting up the refinery cannot induce us to order independent classification under Chapter 87 when the HSN notes are found to specifically provide for such a classification only when 'presented separately' at import and would call for an assessment in this case under 84.26. When such independent import or independent use of SPMTs at the Refinery in this case has not been proved and or alleged the classification at Jawahar Customs House does not induce us to depart from relying on HSN notes to arrive at a classification under Chapter 87. Just because Tyres are being assessed separately will not call for assessment of Tyres imported presented not separately but with CKD a Motor Vehicle will call for their assessments as Tyres, and not as Motor Vehicles under import.
(e) The grounds taken by Revenue for proposing classification SPMTs are found to be in total disregard of the cannons of classification, HSN notes; and the provisions of Section 19 of the Customs Act, "1962.
Therefore, we cannot uphold the Revenue appeal on that account.
2.3 Considering the eligibility found under benefit of Notification 11/97 by the CC(A) and the grounds taken by Revenue it is found-- (a) Since we find the present import to be that of a 'mobile crane' we find no bar in the eligibility to the notification.
(b) Considering the grounds on 'material handling equipment' claim under the notification as taken, we find no reason to uphold the ground taken by Revenue on this account, in this appeal, since as per the intent import, the entity will be and has been used in handling the huge bulky material in its erection and the setting up of the Refinery, the distinction being drawn between Erection Equipment and Material Handling Equipment in absence of any definition by work of an Art in the notification, is not called for.
We therefore', find no reason to arrive at denial of the benefit of the notification as upheld by CC(A).
(a) Since the experts opinion and reasons on valuation are brought out in para (v) we do not repeat them nor deal with individual grounds. However, it has to be held- (i) Comparison form the Technical literature and then comparing the present import with the values of Crawler Crane CC-12600 an accepted Mobile Crane imported at Jawahar Customs House to be identical and similar to goods herein only on the grounds of Lifting Capacity of the Crawler Crane CC-12600 and the present imported Crane to be same and thereafter taking the purchase price of Crawler Crane CC-12600 as available in the literature to be DM25 Million in 1997 and then applying the valuation to the crane in the present case cannot be upheld. One cannot appreciate comparison valuation, as arrived at, merely on capacity basis when goods are of different models old machinery with different usage and have "Opportunity Costs" in-built for such specific old used machinery. The application of Best judgement Rules also has to be in conformity with the Valuation Rules. One cannot compare unlike or dissimilar goods, to arrive at valuations based on by comparable goods rules, even under best judgement rules. The proposal as made in the appeal cannot be therefore upheld. (ii) CC(Appeal) in the order impugned order has dealt with the aspect of valuation in extensio in para 11 and we find no valid grounds to repeal those findings.
2.5 When we find no infirmity in the CC(Appeal) order on classification, valuation and eligibility to notification. We find no reason to interfere with the same.
3. Consequent to our finding, this appeal is to be rejected. Ordered accordingly.