AIRPORT AUTHORITY OF INDIA Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) In this appeal, filed by M/s. Airport Authority of India, the issue involved is whether Van Mounted Heavy Weight Deflectometer and Analysis Computer Programme (Van Mounted Pavement Testing Machine), imported by them, is classifiable under sub -heading 9024.80 of the First Schedule to the Customs Tariff Act and eligible for benefit of exemption under Notification No. 21/2002 -Cus. (Sl. No. 232) or is classifiable under sub -heading 8705.90 of the Tariff as confirmed by the Commissioner, under the impugned Order.

(2.) Shri D.N. Mehta, learned Advocate, submitted that the impugned Dynamic loading device which is mounted for convenience of travel on vehicle is built as per ICAO Aerodrome Design Manual Part III; that this is specifically designed equipment for testing of asphalt and concrete pavement as distinguished from a special purpose motor vehicle; that the equipment consists of hydro -mechanical/electrical pavement loading device supported by electronic package for registration, of load and deflections including hardware/software package for automatic recording and preliminary data processing in the field; that the impugned goods are not special purpose motor vehicle falling under Heading 87.05 of the Tariff; that the equipment is self propelled one like Motor Grader, Pavement Scrubbing Machine, Surface Friction Tester, etc.; that merely because it looks like a vehicle and has got some automatic features, it does not change the classification of the Pavement testing equipment to the category of a vehicle. The learned Advocate mentioned that Explanatory Notes of HSN under Heading 87.05 clearly provides that the "heading excludes self propelled wheeled machines in which the chassis and the working machines are specially designed for each other and form an integral mechanical unit (e.g. self propelled motor graders)." He pointed out that in the present matter also the goods which are essentially a testing machine has been mounted on a Volks Wagon Van, simply for the convenience of the transportation and the chassis and the testing machine are constituted to form an integral unit which would fall outside the purview of Heading 87.05. He relied upon the decision in Gujarat State Fertilizers and Chemicals Ltd. v. CC, Mumbai, 2002 (146) E.L.T. 547 (T) wherein the Gel Documentation and Image Analysis System with Integrated Facility and Glossy Thermal Paper has been classified under Heading 90.27 of the Customs Tariff and not under subheading 8471.91. He also mentioned that vehicle mounted goods had been cleared at Mumbai under Chapter 90 of the Tariff; that the Commissioner has disregarded the said precedent by merely saying that those goods were different; that it is the ratio of the decision which matters and which is applicable squarely in the present case; that it has been held by the Supreme Court in Nirav International v. CC, 1997 (90) E.L.T. 13 (S.C.) that when differing with decision of identical imports at another port, the Authority has to look into the same and say whether it agrees or disagrees with the findings of the decision cited.

(3.) The learned Advocate, further, submitted that the Commissioner has wrongly relied upon the decision in Indian Hydraulic Industries (P) Ltd. v. CCE, 1988 (37) E.L.T. 213 (T) without appreciating that this decision was given in the context of old Customs Tariff which unlike the present Customs Tariff Act, was not patterned on HSN and was as such distinguishable; that moreover, the testing machines are classifiable under Heading No. 90.24 of the Tariff; that the impugned machine has not been fabricated piece by piece on the vehicle. Finally, he submitted that as per entry No. 232 of Notification No. 21/2002, Runway Marking and Pavement Testing Machine falling under any Chapter of the Tariff are liable to pay duty at concessional rate.