2008(02)LCX0193

IN THE CESTAT, PRINCIPAL BENCH, NEW DELHI

Justice S.N. Jha, President and Shri A.K. Srivastava, Member (T)

Havell's India Ltd.

Versus

Commissioner of Customs (Export), New Delhi

Stay Order No. C/39/2008-(PB), dated 8-2-2008 in Application No. C/S/22/2008 in Appeal No. C/05/2008

Cases Quoted -

Shree Baidyanath Ayurved Bhavan Ltd. v. Collector -1995(03)LCX0046 Eq 1996 (083) ELT 0492 (S.C.) - Relied on . [Para 3]

Commissioner v. Vicco Laboratories - 2004(12)LCX0069 Eq 2005 (179) ELT 0017 (S.C.) - Relied on [Para 3]

Advocated By -

Shri Rajesh Kumar, Advocate, for the Appellant.
Shri A.K. Madan, DR, for the Respondent.

[Order per : Justice S.N. Jha, President]. -

This appeal has come up for hearing on the point of waiver of requirement of pre-deposit. The dispute relates to classification. While according to the assessee/appellant, the product falls under Tariff Item 9405, according to the Revenue, it falls under Tariff item 8539 31 10.


2. The matter was heard for sometime on 6-2-08 and adjourned for further hearing on the request of the appellant's Counsel. Today during the course of hearing, ld. Counsel produced a sample of the product. On a very look of the same, the product appears to be different from what is known as Compact Fluorescent Lamps (CFL) described in Tariff Item 8539 31 10. We may at this stage mention that Tariff Item 9405 refers to "Lamps and Lighting fittings including searchlights and spotlights and parts thereof, ……….". It would appear that 'Lamps and Lighting fittings' generally refer to all types of lamps and light fittings - an inference strengthened by the inclusive definition ("including"), unless the particular product is specified or included elsewhere in the Tariff. Tariff Item 8539 refers to electric filament or discharge lamps, including sealed beam lamp units and ultra-violet or infra-red lamps; arc-lamps. Various products have been specified under the said Tariff Item including CFL. Thus if product would qualify to be CFL, it would not fall under Tariff Item 9405. While CFL of Indian make can be fitted in any holder, the product in question cannot be used without making suitable provisions in the ceiling. In other words, the product does not have ready-to-use value as compared to CFL.


3. On behalf of the Revenue, it was submitted that the product was examined by the National Physical Laboratory and M/s. Phoenix Lamps Ltd. Ld. DR tried to go into the technical aspects of the product and a distinction was sought to be made between cold cathode lamps and hot cathode lamps. We do not propose to go into the scientific aspects of the product. It is well settled by various decisions such as in the cases of Shree Baidyanath Ayurved Bhavan Ltd. v. CCE - 1995(03)LCX0046 Eq 1996 (083) ELT 0492 (S.C.) and CCE v. Vicco Laboratories - 2004(12)LCX0069 Eq 2005 (179) ELT 0017 (S.C.) that for the purpose of classification of any product the scientific and technical meaning of the terms and expressions is not relevant. If the product has been and is generally understood as a different distinct marketable identity, in the popular perception, it cannot be called CFL. In this view of the matter, we are inclined to think that the product would fall under Tariff Item 9405.


2. . The appellant has thus made out a strong prima facie case in its favour, it is entitled to full waiver of the requirement of pre-deposit. Accordingly, we dispense with the requirement and thus allow the application.

(Order dictated in the open Court.)

Equivalent 2008 (226) ELT 0390 (Tri. - Del.)