1997(04)LCX0088
BEFORE THE COMMISSIONER (APPEALS), CENTRAL EXCISE, GHAZIABAD
Shri B.P. Srivastava
IN RE : CENTRAL ELECTRONICS LTD.
Order-in-Appeal No. 454/CE/MRT/97, dated 2-4-1997
Cases Quoted
ESPI Industries and Chemicals Pvt. Ltd. v. Collector — 1995(03)LCX0020 Eq 1996 (082) ELT 0444 (S.C.)
— Relied on [Para 4]
Alco Industries v. Collector — 1987(08)LCX0036 Eq 1987 (032) ELT 0279 (Mad.) — Relied on [Para 4]
Brakes India Ltd. v. Collector — 1987(08)LCX0099 Eq 1987 (031) ELT 1030 (Tribunal) — Relied on [Para 4]
[Order]. - This appeal has been filed by M/s. Central Electronics Ltd. against Order-in-Original No. 62/96 passed by the Asstt. Commissioner, C. Ex. Div. II, Ghaziabad.
2. This appeal involves classification of goods such as :-
(1) Solar Powered Axle Counter Blocks
(2) Pulsed Mode for CO2 laser system
(3) D.C. Amplified unit/magnet current regulator unit
(4) P.C.B. Cards with Spares
3. The classification of Sl. No. 2 to 4 were already approved in 1986, 88 and 89 as under :-
(1) Pulsed Mode for CO2 laser system under Tariff Head 9031 - date of approval is 2-12-1989.
(2) D.C. Amplified unit/magnet current regulator unit-under Tariff Head 9031 and and date of approval is 17-3-1988.
(3) PCB Cards with Spares under Tariff Head 9031 and date of approval is 17-3-1988.
4. The above classification list approved were final, however the classification of Solar Power Axle Counter blocks at Sl. No. 1 above were done under Chapter 8530 read with Exemption Notfn. No. 205/88, dated 25-5-1988. These classifications have now been finalised by the Adjudicating Authority vide his Adjudication order No. 62/96, dated 25-3-1996 which is the subject matter of the present appeal. By this order, the Adjudicating Authority classified Sl. No. 2 and 3 above under Chapter 8548 and 4 under Chapter 8473 and 1 under Chapter 8541. Appellants in his written submissions as well as at the time of hearing submitted that in view of various decisions of Courts and Tribunal including that of the Apex Court in ESPI Industries and Chemicals Pvt. Ltd. v. CCE, Hyderabad 1995(03)LCX0020 Eq 1996 (082) ELT 0444 (S.C.) it was held by Supreme Court that classification list having once accepted by the department can not take a somersault and contend to the contrary. Earlier Madras High Court in case of Alco Industries v. CCE, Madras & Another 1987 (032) ELT 279 held the same view and Tribunal followed the same in a series of appeals in 1987(08)LCX0099 Eq 1987 (031) ELT 1030 (Tribunal) = 1987 (013) ECR 404. Therefore without going into the merits about classification of goods at Sl. No. 2 to 4 which were already approved by the department in the year 1986-88 and 89, I find the present order not legally maintainable and set aside the same and allow the appeal of the appellant.
5. As regards classification of goods at Sl. No. 1, appellant had desired the classification of the same under Chapter 85.41 which speaks about Diodes, Transistors and similar semi-conductor devices, photosensitive semi-conductor devices etc. on the ground that these Axle Counter are run by solar energy. Appellant however while explaining the functioning of these equipments clarified that they are used for automatic signaling between two railway station when all the Axles in a train passed through a particular station, the same are recorded in the panel and flashed to the next station for automatic control of the signal. Chapter 8530 under which department have classified the present goods speaks about, “Electrical signaling, safety or traffic control equipment for railways, tramways, roads, inland waterways etc.” Solar energy is only a substitute for electrical energy and the present equipment is used in Western India where there is a shortage of power. But this does not change the nature of the equipment as it is used for signaling and safety and traffic control equipment for railways. The role of solar energy is only to charge the battery through solar power which are stored in the battery and converted into electrical energy when required. Therefore this item Axle Counter Blocks system would merit classification under Chapter Head 8530 instead of 8541 as contended by the appellant. Order of the Adjudicating Authority is upheld on this count and appeal rejected.
6. This appeal is thus partly allowed.
Equivalent 1997 (95) ELT 686 (Commr. Appl.)