Peunwalt (i) Ltd. Vs. Collector of Customs - Court Judgment

Excerpt:
1. the appellant filed this appeal against the order-in-appeal passed by the collector of customs (appeals) bombay. in the impugned order the fin tubes imported by the appellants was held to be classifiable under customs tariff heading no. 73.04.2. the appellant made import of 46 pieces of longitudinal fin tubes from germany and claimed classification under tariff heading no. 84.19 as parts of heat exchanger and further claimed the benefit of notification no. 172/89-cus.3. ld. counsel appearing on behalf of the appellants submits that the fin tubes imported by the appellants were cut to specific shape and size and were meant to be fitted directly without any fabrication to the heat exchanger, without any further processing, therefore these tubes are identifiable as parts of heat exchanger and are classifiable under tariff heading 8419.90. he further submits that these fin tubes have been specifically designed by their foreign . collaborators as per the drawing and specification for the heat exchanger. he relied upon the decision of the tribunal in the case of bhel v. cce reported in 1984 (16) e.l.t. 355 and submits that the tribunal in this case held that fin tubes which are identifiable parts of heat exchanger are held to be classifiable as parts of heat exchanger. he therefore prays that the appeal be allowed.4. shri a.k. agarwal, sdr appearing on behalf of the revenue submits that the fin tubes in question are specifically comes under tariff heading no. 73.04. they also relied upon the hsn explanatory notes. he further submits that the tribunal in the case of macneill & magor ltd. v. collector of customs in appeal no. c/2844/87-b2 vide final order no.s/74-75/97-b2, dated 4-12-1996 1997 (91) e.l.t. 112 (tribunal) held that stainless steel used in heat exchanger are classifiable under tariff heading no. 7304.5. heard both sides. in this case the appellant made import of longitudinal fin tubes and claimed classification under tariff heading 8419.90, with the benefit of notification no. 172/89-cus. the short question that falls for determination in this appeal is that of proper classification of fin tubes used in heat exchanger. the contention of the appellant is that the fin tubes are specifically designed and manufactured by heat exchanger and are not general purpose parts. we find that fin tubes are specifically described under customs tariff heading no. 73.04. as per the hsn explanatory notes heading 73.04 also covers the tubes, pipes, hollow profile, straight or curved plain finned or gilled. the appellants relied upon the decision of the tribunal in the case of bhel v. collector of customs reported in 1984 (16) e.l.t. 355. the tribunal in the case of macneill & magor ltd. v.collector of customs, bombay (supra) after considering the decision of the tribunal in the case of bhel v. collector of customs held as under : "through out the proceedings, the ld. advocate very forcefully contended before us that these items could not be used except as component parts of heat exchangers and therefore, according to established principles of classification would be classifiable only under the chapter heading relevant to heat exchangers. we are unable to persuade ourselves to accept this line of approval in view of the categorical indication as to classification of these goods in hsn notes. hsn notes under heading 73.04 clearly indicate that the products of this heading include in particular among others tubes and pipes suitable for use in heat exchangers. the hon'ble apex court in the case of collector of central excise, shillong v. wood craft products ltd. - 1995 (77) e.l.t. 23 (s.c.) held that central excise tariff act, 1985 is enacted on the basis and pattern of the hsn, the same expression used in the act must, as far as practicable, be construed to have the meaning which is expressly given to it in the hsn when there is no indication in the tariff of a different intention. customs tariff also like central excise tariff is based on hsn and therefore, this observation would be equally applicable while interpreting an entry in the indian customs tariff also. 8...however, since hsn notes under chapter heading 73.04 categorically indicate tubes for heat exchangers and such tubes admittedly are expected to be manufactured according to specifications for heat exchangers, we do not think that these observations about the character of the tubes are of any material significance as hsn notes make it clear that such seamless steel tubes would fall under chapter heading 73.04." 6. we find that the ratio of the above mentioned decision of the tribunal is fully applicable in the present case. in view of this, we do not find any infirmity in the impugned order. the appeal is dismissed.

Judgment:
1. The appellant filed this appeal against the order-in-appeal passed by the Collector of Customs (Appeals) Bombay. In the impugned order the fin tubes imported by the appellants was held to be classifiable under Customs Tariff Heading No. 73.04.

2. The appellant made import of 46 pieces of longitudinal fin tubes from Germany and claimed classification under Tariff Heading No. 84.19 as parts of heat exchanger and further claimed the benefit of Notification No. 172/89-Cus.

3. Ld. Counsel appearing on behalf of the appellants submits that the fin tubes imported by the appellants were cut to specific shape and size and were meant to be fitted directly without any fabrication to the heat exchanger, without any further processing, therefore these tubes are identifiable as parts of heat exchanger and are classifiable under Tariff Heading 8419.90. He further submits that these fin tubes have been specifically designed by their foreign . collaborators as per the drawing and specification for the heat exchanger. He relied upon the decision of the Tribunal in the case of BHEL v. CCE reported in 1984 (16) E.L.T. 355 and submits that the Tribunal in this case held that fin tubes which are identifiable parts of heat exchanger are held to be classifiable as parts of heat exchanger. He therefore prays that the appeal be allowed.

4. Shri A.K. Agarwal, SDR appearing on behalf of the Revenue submits that the fin tubes in question are specifically comes under Tariff Heading No. 73.04. They also relied upon the HSN Explanatory notes. He further submits that the Tribunal in the case of Macneill & Magor Ltd. v. Collector of Customs in Appeal No. C/2844/87-B2 vide Final Order No.S/74-75/97-B2, dated 4-12-1996 1997 (91) E.L.T. 112 (Tribunal) held that stainless steel used in heat exchanger are classifiable under Tariff Heading No. 7304.

5. Heard both sides. In this case the appellant made import of longitudinal fin tubes and claimed classification under Tariff Heading 8419.90, with the benefit of Notification No. 172/89-Cus. The short question that falls for determination in this appeal is that of proper classification of fin tubes used in heat exchanger. The contention of the appellant is that the fin tubes are specifically designed and manufactured by heat exchanger and are not general purpose parts. We find that fin tubes are specifically described under Customs Tariff Heading No. 73.04. As per the HSN Explanatory notes Heading 73.04 also covers the tubes, pipes, hollow profile, straight or curved plain finned or gilled. The appellants relied upon the decision of the Tribunal in the case of BHEL v. Collector of Customs reported in 1984 (16) E.L.T. 355. The Tribunal in the case of Macneill & Magor Ltd. v.Collector of Customs, Bombay (supra) after considering the decision of the Tribunal in the case of BHEL v. Collector of Customs held as under : "Through out the proceedings, the ld. Advocate very forcefully contended before us that these items could not be used except as component parts of heat exchangers and therefore, according to established principles of classification would be classifiable only under the chapter heading relevant to heat exchangers. We are unable to persuade ourselves to accept this line of approval in view of the categorical indication as to classification of these goods in HSN Notes. HSN Notes under Heading 73.04 clearly indicate that the products of this heading include in particular among others tubes and pipes suitable for use in heat exchangers. The Hon'ble Apex Court in the case of Collector of Central Excise, Shillong v. Wood Craft Products Ltd. - 1995 (77) E.L.T. 23 (S.C.) held that Central Excise Tariff Act, 1985 is enacted on the basis and pattern of the HSN, the same expression used in the Act must, as far as practicable, be construed to have the meaning which is expressly given to it in the HSN when there is no indication in the tariff of a different intention. Customs Tariff also like Central Excise Tariff is based on HSN and therefore, this observation would be equally applicable while interpreting an entry in the Indian Customs Tariff also.

8...However, since HSN Notes under Chapter Heading 73.04 categorically indicate tubes for heat exchangers and such tubes admittedly are expected to be manufactured according to specifications for heat exchangers, we do not think that these observations about the character of the tubes are of any material significance as HSN Notes make it clear that such seamless steel tubes would fall under Chapter Heading 73.04." 6. We find that the ratio of the above mentioned decision of the Tribunal is fully applicable in the present case. In view of this, we do not find any infirmity in the impugned order. The appeal is dismissed.