CX - Whether machinery supplied have key characteristic of lift when assembled - Panel of Engineers appointed, now disassembled - Member(T) recuses himself, new Member(T) appointed to preside and matter to be heard finally by Tribunal itself by hearing on two consecutive days: CESTAT
By TIOL News Service
MUMBAI, MAR 26, 2014: WE had in DDT 2174 22/08/2013 reported -
CESTAT appoints panel of Chartered Engineers to determine whether machinery items supplied have essential characteristic of lift when assembled
THE issue is of classification of the machinery items supplied by the appellant. When the miscellaneous application was posted for considering whether the machinery items supplied by the appellants are having the essential characteristic of lift assembled together, the appellant relied on an affidavit filed by a Chartered Engineer to support their contention.
Since the Counsel for the Revenue controverted the said affidavit, the Member(J) found it prudent to appoint a three-member panel comprising of Chartered Engineers who were entrusted to examine various materials supplied by the appellants for installation of lift along with the drawings and documents available with them and on inspection to decide whether the various items of lift machinery manufactured by the appellants are having essential characteristics of lift if assembled. The panel was directed to file their reports within two months.
The Member (T) agreed to the proposal but found it worthwhile to clarify the following as a matter of abundant precaution -
"6. …it is the job of the Tribunal to decide the classification of goods which would cover a ruling whether set of items have the essential character of particular machine or not, in this case lift. It is not the job of a technical panel to take such a decision. Technical panel can opine the technical and engineering aspect including utility of various parts. They can also opine what would be the position in the absence of certain parts. These details will assist the Tribunal to take a view, whether or not parts cleared by the appellant can be considered as lift. Panel should not decide or opine whether the various items of lift machinery manufactured by the appellants are having essential characteristic of lift, if assembled."
Incidentally, as for the costs that would be involved, the Bench mentioned this - "Both the sides are directed to bear the expenses of the above panel equally."
See 2013-TIOL-1253-CESTAT-MUM
It appears that a Miscellaneous application was filed in the aforesaid matter.
When the case was called,the appellant referred to the aforementioned observations of the Member (Technical) and requested that the "matter relating to the reference to the panel should be decided first ”.
Incidentally, here is an interesting dope - "Subsequent to this order, the Member (Technical) of the previous Bench had recused and the matter has been directed to be placed by the Hon'ble President of the CESTAT to the Bench presided by ShriP.R.Chandrasekharan, Member (Technical) and to consider the matter afresh."
The Revenue representative submitted that the appeal in this case had come up before the Bombay High Court [CE Appeal no. 6 of 2009] and the High Court vide order dated 16.04.2009, while setting aside the order of the Tribunal dated 10.07.2008 [2008-TIOL-2834-CESTAT-MUM], remanded the matter back to the Tribunal for de novo consideration and after hearing the parties to pass order according to law. And, therefore, in view of the above direction, the matter had to be considered afresh and after hearing the parties, the order has to be passed in accordance with law. Inasmuch as the question of setting up of any panel would not arise, it was emphasized.
The Division Bench observed -
"…Therefore, we would like to hear the parties and on the basis of evidence available on records and the submissions made, we would like to decide the matter finally. The miscellaneous application is disposed of in the above terms."
It was also mentioned -
"4. Since the issues involved merit deep consideration and the learned Counsels on both the sides want to make elaborate submissions, it would be appropriate to hear the matter continuously at a time for 2 days. Accordingly, we direct the Registry to list the matter for arguments at 2.30 P.M on 27 th & 28 th March, 2014."
We will keep you posted, lift or otherwise…
(See 2014-TIOL-450-CESTAT-MUM)
