INDIAN HOTELS LIMITED Vs. COMMISSIONER OF CUSTOMS, CHENNAI

JUDGEMENT

(1.) BOTH the appeals raise a common question of law and facts. Hence both are taken up together for disposal as per law.

(2.) THE question in both the appeals is with regard to the classification of an imported item described as "Centrifugal Chiller". The Appellant claimed the classification under Chapter Heading 8418.69 of Customs Tariff Act and cleared the same. The department had not raised any objection at the time of clearance under this heading. However, a short levy notice was issued seeking for reclassification as "part of the Refrigerator" by invoking section Note 2(b) of section XIV of the Customs Tariff Act for classifying it under heading 85.17. The Commissioner, after granting an opportunity of hearing, upheld the Revenue's view and rejected the classification as originally held. The Ld. Counsel submits that this item cannot be classified as parts of Refrigerator because it has an independent function. Further, Refrigerator has got an evaporator, condenser, and motor mixture while the impugned item does not have it. They have produced documentary evidence to show that the item is a chiller. Ld. Counsel had also relied on the expert opinion of Dr. Prem C. Jain which was not accepted by Revenue and the Commissioner did not also take into consideration the opinion given by the said Professor. However, Ld. Commissioner has taken into consideration the opinion given by the Professor of I.I.T. Ld. Counsel submits that the professor of IIT was not given an opportunity to be cross examined hence the evidence is not sustainable. He further, submits that the issue is fully covered; by the Tribunal's ruling rendered in the case of Carrier Aircon Ltd. vs. CC, 2001 (128) ELT 485 wherein the very item was taken up for the purpose of decision regarding classification and the Tribunal noted its primary function being to chill water by using Refrigeration circuit and taken into consideration the Board's circular No. 242/76/96 -CX dt. 3.9.96, upheld the assessee's contention. He also submits that explanatory note of HSN was also referred. He also referred to the judgement of the Special Bench in WRB in the case of Western Refrigeration P. Ltd. vs. CC, 1995 (77) ELT 673 wherein the Revenue had accepted the classification under Chapter sub Heading No. 8418.69 for refrigeration, base, mixies. In that case, the issue was only about denial of the benefit of Notification No. 59/87. He submits that in this case also the benefit of Notification had not been granted, therefore, in view of the Tribunal's decision, the appeals are required to be allowed.

(3.) ON the other hand Ld. DR submits that the function of the item is "refrigeration" and airconditioning machines are covered under heading 84.15. He contends that for the purpose of heading 84.18 the Commissioner has noted that the temperature should go down beyond 0 degree C. which is not the case here and hence it has to be classified under heading 84.15. He also relied on the HSN explanatory note wherein under heading 84.15 Refrigeration units are covered including refrigeration units, cold water cooler and other cooling elements.