COMMISSIONER OF C. EX. Vs. RUNGTA IRRIGATION LTD.

JUDGEMENT

(1.) THE issue in this case pertains to classification of the HDPE pipes manufactured by the respondents. When the respondents filed a revised classification declaration with the department under Rule 173B (of the Central Excise Rules 1944) claiming classification of their product (HDPE pipes) as a part of Sprinkler Irrigation System under sub -heading 8424.91 (rate of duty "Nil") of the CETA Schedule, the department opposed the claim and insisted on continuance of the earlier classification under SH 3917.00 (rate of duty 16%). The original authority held the classification under SH 3917.00 and demanded duty on the clearances for the period July 2001 - March 2002. It also imposed a penalty on the party. The decision of the original authority was set aside by the first appellate authority in the assessee's appeal. The appellate authority classified the goods under SH 8424.91 as claimed by the assessee, and vacated the duty demand and penalty. Hence this appeal of the Revenue.

(2.) HEARD SDR for the appellant and counsel for the respondents. Ld. DR reiterated the ground raised in the appeal memo. He particularly submitted that the plastic pipes/tubes manufactured and cleared by the respondents were goods of general use and hence stood excluded from the purview of Section XVI (which included Chapter 84) by virtue of Note 1(g) to the said Section, XVI of the Schedule to the Central Excise Tariff Act. Ld. SDR relied on para (2) of the Board's , dated 16 -3 -1998 and submitted that, in terms of the said para, the plastic pipes/tubes of the respondents could be classified under Heading 39.17 only. He also relied on the Tribunal's decisions in the cases of Jyoti Plastic v. Collector [1993 (64) E.L.T. 291] and Supreme Industries v. Collector [1999 (106) E.L.T. 207].

(3.) LEARNED Commissioner (Appeals) has found that the HDPE pipes manufactured by the respondents were of IS specification for sprinkler irrigation system, that the pipes were only supplied as part of such system to State Governments and were never sold otherwise, and that the assessee had established with the aid of invoices and IS specifications that the pipes were made for sprinkler irrigation system only. These findings of facts have not been challenged in this appeal. Ld. SDR has, however, submitted that the respondents were manufacturing HDPE pipes in the sizes 63, 75, 90 and 110 mm which were within the standard range (50 to 600 mm) of sizes sold in the market for general purposes and therefore the subject goods should be classified under Heading 39.17. We are unable to accept this ground for two reasons. Firstly, this ground has not been raised in the memorandum of appeal. Secondly, the learned DR's submission does not take into account the pressure -specifications for pipes used in a sprinkler irrigation system. The various sizes of HDPE pipes manufactured by the respondents were, undisputedly, of the pressures 2 kg, 2.5 kg and 3.2 kg which were specific for sprinkler irrigation systems as per IS specifications, whereas the standard pressures sold in market for general purposes were 4 kg., 6 kg. and 10 kg. vide para 3(i) of the impugned order. For the reasons stated by us, the goods in question can only be classified as parts of sprinkler irrigation system under Heading 84.24. In the case of Jyoti Plastic cited by the DR, the plastic tubes/pipes were found to be articles of general use and classified under Heading 39.17. In Supreme Industries (supra), the dispute was whether certain pipe fittings manufactured by the assessee were classifiable under Heading 39.17 or under Heading 39.25. Neither case involved classification of irrigation equipment -specific plastic pipes or tubes. Both the cases cited by the DR are thus distinguishable from the instant case. On the other hand, in the cases cited by counsel, it was consistently held that plastic pipes manufactured for being used as parts of irrigation equipments/systems, and actually supplied as such parts, were only to be classified under Heading 84.24. The lower appellate authority has rightly followed one of these decisions. Its reliance on para (4) of the Board's circular referred to by the DR is also quite appropriate.