- (1.) THESE appeals raise an interesting and important question: as to whether persons like the Assessees, in these cases, who manufacture 'lifting machinery', which machinery, it is argued, is the essential part which actually brings up and brings down an elevator/lift, is liable to be classified under Chapter sub -heading No. 8428.00 or 8431.00. 8428.00 Other lifting, handling, loading or unloading machinery (for example, lifts, escalators, conveyors, teleferics) 8431.00 Parts suitable for us solely or principally with the machinery of heading Nos. 84.25 to 84.30. Both the Assessees before us contend that despite the fact that they produce components of lifting machinery separately, these are all cleared at the factory gate under a single contract number and ultimately form the essential part of what is finally shown, by way of a lump -sum price as a complete elevator or lift.
(2.) LEARNED Counsel for the Revenue on the other hand, contends that these are only parts that are sold at the factory gate which are suitable for use with the machinery under Chapter Heading No. 84.28 and therefore are liable to be classified under sub -heading No. 8431.00. The period with which we are concerned in these appeals is, in Civil Appeal No. 445 of 2007, from 1 -3 -1987 to 20 -2 -1995, and in Civil Appeal No. 10633 of 2014, from April, 1986 to 1 -3 -1995. The reason why these appeals are not concerned with the period after 1 -3 -1995 is that whether these components are classified under sub -heading No. 8428.00 or 8434.00 after 1 -3 -1995, the duty is the same. However, for the period in question, if classification takes place under sub -heading No. 8428.00, the duty at one point of time is 15 percent as opposed to the duty under sub -heading No. 8431.00, which at one point of time, was 20 percent. We are informed that for all these years, the duty rates fluctuate but never so as to bring sub -heading No. 8431.00 at par with sub -heading No. 8428.00. Learned Counsel for the Assessees had argued before both the Commissioner and the Tribunal in the two respective appeals that essentially what was ultimately sold was a complete lift and as a complete lift was immovable property, since all the components were fixed in the premises of the customer, it would not be classified as such in an excise tariff, which deals only with goods. However, the very fact that the expression "lifts" occurs in sub -heading No. 8428.00 would necessarily mean that it is not immovable property that is sought to be taxed under the Central Excise Tariff but the price of components which make -up the ultimate lift and that being so, it should fall within sub -heading No. 8428.00 and not 8431.00.
(3.) WHAT has been held by both the Commissioner and the Tribunal in the two judgments which are under appeal before us is essentially that since the Appellants -assessees do not, in fact, manufacture every single component that goes into a lift, neither Note No. 4 of Section 16 nor interpretative Note 2(a) would apply, since what has been cleared is only certain parts of the complete lift. It was concurrently found by the authorities that the Revenue's case was made out, and that the component parts manufactured by the Assessees would fall within sub -heading No. 8431.00.;