Cce, Lucknow vs M/S Railway Equipment & Engg. Works
- CitationExcise Appeal No. 4016 of 2006
Ratio decidendi
The rule this decision rests on
Where the Revenue seeks to displace a classification accepted by the First Appellate Authority, the burden lies on the Department to establish, with documentary evidence, that the manufacturer's claim is unacceptable or that further finishing operations were required before the goods could be classified under the heading the Revenue contends for; the mere closure of the manufacturing unit does not shift that burden to the assessee. Where a manufacturing study report, relied upon by the First Appellate Authority, records that the goods are removed from moulds, cleaned and brushed and require no subsequent machining before dispatch, the goods are properly classifiable under the heading claimed on that basis, absent contrary evidence from the Department.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of the Order-in-Appeal No. 127-CE/LKO/2006 dated 28/08/06 passed by the Commissioner (Appeals), Central Excise & Service Tax, Lucknow).
For approval and signature:
Honble Mr. Justice G. Raghuram, President
Honble Mr. H.K. Thakur, Technical Member
1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?
2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3 Whether their Lordships wish to see the fair copy of the Order?
4 Whether Order is to be circulated to the Departmental authorities?
CCE, Lucknow . Appellant
vs.
M/s Railway Equipment & Engg. Works . Respondent
Appearance:
Shri R.K. Mishra, A.R. for the appellant/Revenue.
None for the Respondent.
Coram: Honble Mr. Justice G. Raghuram, President
Honble Mr. H.K. Thakur, Technical Member
Final Order No. 52211/2015 dated 10/07/2015
Per. H.K. Thakur :-
This appeal has been filed by the Revenue against OIA No. 127-CE/LKO/2006 dated 28/08/2006. The issue involved is whether Cast Iron Plates (CI Plates) for Emery machinery manufactured by the appellant will be classified under Chapter Heading 7325.10 of the Central Excise Tariff Act (CETA) 1985 or under Chapter heading 8437.00. Commissioner (Appeals) under OIA dated 28/08/2006 classified the same under heading 8437.00. None appeared on behalf of the respondent and there is also no request for adjournment.
2. Shri R.K. Mishra (AR) appearing on behalf of the Revenue argued that the factory of the respondent has been closed and CI Plates and machinery involved have been disposed off. That at the time of adjudication, the machine used for the manufacturing was not available for visit and the actual process of manufacture undertaken was not verifiable. That such a verification is not possible now either by the visit to the respondent or to their end users. That directions given by Honble CESTAT in remand proceedings cannot be carried out. Further argued that as per CBEC Circular No. 23/89 dated 28/7/89, superseded by Circular No. 225/59/1996-CX. dated 1/7/1996, castings taken out of castings moulds up to the stage of proof machining and further machining will be classifiable under Chapter Heading 73. It was his case that the order passed by the First Appellate Authority should have made classification of CI Plates under Chapter 8437.00
3. Heard learned (AR) and perused the case records. The issue involved in the present proceedings is the classification of Cast Iron Plates for Emery machinery manufactured by the respondent, whether under Central Excise Tariff heading 7325.10 or 8437.00. Commissioner (Appeals), while holding the classification of the CI Plates for Emery machinery under 8437.00, has relied upon one report from Superintendent of Central Excise, Range Mathura; wherein it has been reported that manufacturing study of CI Plates reveals that the moulds are prepared for Cast Iron Plates with the help of its pattern and then molten metal is poured into the moulds. That after solidification and cooling the cast iron plates are taken out of moulds and cleaned, brushed and battled. That after cleaning of Cast Iron Plates the same are sent to emery machine industries and does not need any subsequent machining. From the above report reproduced in the order of the First Appellate Authority it is correctly held that the CI plates for emery machinery was classifiable under heading 8437 of the CETA, 1985. If the manufacturing unit is lying closed at the moment then the case of the Revenue cannot be decided in their favour because it is the responsibility of the Department to establish, with documentary evidence, that the claim made by the manufacturing unit is not acceptable or that other finishing activities were required to be done on cast iron plates for emery machinery.
4. In view of the above observations, appeal filed by the Revenue is dismissed by upholding the order passed by the First Appellate Authority.
(Operative part of the order pronounced in the open court.)
andl
(Justice G. Raghuram)
President
(H.K. Thakur)
Technical Member
PK
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