1997(02)LCX0166

IN THE CEGAT, COURT NO. II, NEW DELHI

S/Shri S.L. Peeran, Member (J) and Shiben K. Dhar, Member (T)

SUN EXPORT CORPORATION

Versus

COLLECTOR OF CUSTOMS, BOMBAY

Final Order No. C/663/97-B2, dated 12-2-1997 in Appeal No. C/2667/89-B2

Advocated By : Shri S.S. Srinivasan, Authorised Representative, for the Appellant.

Shri K.K. Jha, JDR, for the Respondent.

[Order per : Shiben K. Dhar, Member (T)]. - The appellants imported electric switch, trig torch, fuse book assembly and claimed these items to be spares for welding machine. They claimed assessment under CTH 98.06 with benefit of Notification No. 69/87, dated 1-3-1987 on the ground that these were parts of welding machine and assessable to duty under CTH 85.15. This claim was rejected by lower authorities on the ground that switch and fuse were assessable to duty under CTH 85.36 and they were not eligible to benefit of exemption under Notification 69/87. Collector (Appeals) however, in regard to trig torch held that this being a specific part of the machine is classifiable under CTH 98.06. He however, did not grant the benefit of Notification No. 69/87 in regard to this item on the ground that the appellants have not properly supported the claim.

2. Arguing for the appellants, ld. Advocate submits that these switches and fuses are parts of welding machine and do not function as conventional fuses and switches which makes an electric contact. In fact they function only by regulating tungsten electrode wire.

3. Arguing for the revenue, ld. DR submits that to the extent they switch and regulate the electric current these are only switches and fuses and are correctly classifiable under heading 85.15.

4. We have heard both sides. The literature submitted by the ld. Advocate in the Court itself indicates that the impugned goods are switches. It was also admitted that in a manner of speaking the other item also is a fuse which automatically interrupt the current when its intensity or voltage exceeds a certain limit. 85.36 covers electric apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits. (For example, switches, fuses, lightning arresters, voltage limiters, surge suppressors etc.). The switches and fuses may be part of a welding machine but they are speci- fically included under CTH 85.35.

5. In regard to trig torch we observe that Collector (Appeals) has accepted it to be a specific part of machine assessable under 98.06. The claim for exemption under Notification 69/87, he has observed, has not been improperly supported by them by indicating that it does not fall under the proviso appended to the notification. We find that Collector (Appeals) in the first instance ought to have arrived at the basic classification of trig torch before classifying it under 98.06. There is also nothing in the appeal papers to indicate whether or not the impugned goods are excluded from purview of Notification 69/87 in the light of exclusion condition set out in the proviso. In view of this, we are of the view that this part of the order would have to be remanded.

6. In the result, we reject the appeal in regard to switches and fuses and remand the matter to Commissioner (Appeals) for de novo decision in regard to trig torch assembly. The appellants shall be heard in person before a decision is taken. The appellants shall be at liberty to produce such additional evidence as they consider would support their case.

Equivalent 1997 (93) ELT 421 (Tribunal)

Equivalent 1997 (020) RLT 0267 (CEGAT-SB)