1997(09)LCX0165

IN THE CEGAT, COURT NO. II, NEW DELHI

S/Shri G.A. Brahma Deva, Member (J) and J.H. Joglekar, Member (T)

B.H.E.L.

Versus

COMMISSIONER OF CUSTOMS, BOMBAY

Final Order No. C/2011/97-B2, dated 18-9-1997 in Appeal No. C/211/87-B2

Advocated By : Shri Z.U. Alvi, General Manager, for the Appellant.

Shri Satnam Singh, SDR, for the Respondent.

[Order per : G.A. Brahma Deva, Member (J)]. - The appellants drew our attention to the Circular No. COD/11/96, dated 16-4-1996 circulated by the Under Secretary of the Cabinet wherein Committee of Secretaries have permitted the appellants to persue the matter before the Tribunal by giving clearance. Accordingly, we proceed to hear both the sides to pass this order.

2. The point to be considered in this case is whether Protective Equipment imported by the appellants is classifiable under 85.18/27(2) as per department or under 85.18/27(3) as per the assessee. The relevant Tariff Entry is as under :-

85.18/27 - Electrical capacitors; electrical apparatus for making and breaking electrical circuits for the protection of electrical circuits, or for making connections to or in electrical circuits; resistors other than heating resistors; printed circuits; switchboards (other than telephone switchboards) and control panels; electric filament lamps and discharge lamps, are lamps; electronic valves and tubes; photocells; mounted piezo-electric crystals; diodes, transistors and similar semi-conductor devices; light emitting diodes, electronic microcircuits; insulated electric wire, cable, bars, strip and the like whether or not fitted with connectors; carbons, brushes, are lamp carbons, battery carbons, carbon electrodes and other carbon articles of a kind used for electrical purposes; insulators of any materials; insulating fittings for electrical equipment; electrical conduit tubing and joints therefor, of base metal lined with insulating material; electrical appliances and apparatus, having individual functions, not falling within any other Heading of this Chapter.

(1) xxxxxxxxxxx

(2) Electrical capacitors, fixed or variable.

(3) Electrical apparatus for making breaking electrical circuits, for the protection of electrical circuits or for making connections to or in electrical circuits; resistors; switchboards and control panels;

Provided that the articles are designed for use in circuits of 400 volts or above or for use with motors of 1.5 killowatts or above. (4) to (7) xxxxxxx.

3. The appellants claimed before the authorities below that item in question was classifiable under 90.28(2) of the Central Excise Tariff Act. While filing the refund claim Shri Z.U. Alvi, General Manager of the appellants’ unit submitted that there was a mistake on the part of the appellants in claiming under 90.28(2) before the authorities below but it is correctly classifiable under 85.18/27(3) of the Central Excise Tariff Act. He submitted that it is not electrical capacitors but only the electrical apparatus as mentioned under Item sub-clause (3). It was also mentioned by him that this type of protection and control equipment is normally employed in Series Compensated transmission and distribution networks. Further, it was stated that the equipment may be used in monitoring and measuring various parameters like improvement in voltage regulation, transmission losses, stability etc.

4. Shri Satnam Singh, learned SDR appearing for the Revenue submitted that since new claim has been made before the Tribunal with reference to the classification and the same has not been considered by the authorities below, matter may be remainded for fresh consideration. Aggrieved with this submission and this being a point of law to with reference to the facts the same has not been considered by the authorities below. We are remanding the matter to the jurisdictional Assistant Commissioner to examine the matter afresh and to pass an order in accordance with law after providing an opportunity to the appellants. The appellants may use to this and adduce additional language or technical literature in support of their claim during readjudication of proceedings. Thus, this appeal is allowed by way of remand.

_______

Equivalent 1998 (100) ELT 413 (Tribunal)