2000(12)LCX0062
IN THE CEGAT, WEST ZONAL BENCH, MUMBAI
S/Shri P.G. Chacko, Member (J) and K.K. Bhatia, Member (T)
PBJ-INDUSTRIAL ELECTRONIC PVT. LTD.
Cases Quoted
Binani Zinc. Ltd. v. Commissioner — 1998(01)LCX0229 Eq 1999 (112) ELT 0578 (Tribunal) — Relied on........... [Para 3]
Collector v. Fykays Engg. P. Ltd. — 2000(01)LCX0179 Eq 2000 (116) ELT 0341 (Tribunal) — Followed............. [Para 6]
Commissioner v. Endee Engineers — 1998(03)LCX0153 Eq 1998 (104) ELT 0403 (Tribunal) — Followed............ [Para 5]
Commissioner v. Siemens Ltd. — 1999(06)LCX0064 Eq 2000 (118) ELT 0689 (Tribunal) — Relied on .......... [Paras 3, 8]
National Thermal Power Co. Ltd. v. Commissioner — 1996(12)LCX0147 Eq 1998 (099) ELT 0200 (S.C.) — Relied on [Para 3]
Advocated By : S/Shri M.H. Patil and T.C. Nair, Advocates, for the Appellant.
Shri J.M. George, JDR, for the Respondent.
[Order per : K.K. Bhatia, Member (T)]. - The matter under consideration in this appeal is the classification of items Flasher Unit, A.C. Drive and D.C. Drive, Thermocouple and Single Phasing Preventer. The Asstt. Collector, Central Excise Dn. H, Bombay-I vide his order dated 3rd October, 1994 has classified the Flasher Unit under Chapter sub-heading 8531.00 as against the appellants’ claim of its classification under sub-heading 9032.80. Similarly he has classified AC/DC Drive under sub-heading 8503.00 against the claim for sub-heading 9032.80. The item Thermocouple is classified by the Asstt. Collector in his order under sub-heading 8548.00 as against the claim of classification under sub-heading 9032.80 and the item Single Phasing Preventor is classified under 2 alternative sub-headings, viz. 8536.90 and 8536.10 depending upon its end-use whether as component parts of the air conditioning machinery or otherwise as against the claim of the classification of this item under sub-heading 9032.80.
2. The appellants have also filed a Misc. petition claiming alternative classification of the item AC/DC Drive under Heading 8504.00 and for adducing additional evidence in support of this claim.
3. We take up first the Misc. petition filed by the appellants for disposal. We have heard Shri M.H. Patil, adv. along with Shri T.C. Nair advocate for the appellants and Shri J.M. George, JDR for the respondents. The ld. advocate for the appellants relies on the decision of the Tribunal in the case of Commissioner of Cen. Ex., Aurangabad v. Siemens Ltd. - 1999(06)LCX0064 Eq 2000 (118) ELT 0689 (Tri.) in which the item AC/DC Drive is classified under sub-heading 8504.00. The ld. advocate further relies on the decision in the case of Binani Zinc Ltd. v. CC, Cochin - 1998(01)LCX0229 Eq 1999 (112) ELT 0578 (Tribunal) and M/s. National Thermal Power Co. Ltd. v. Commissioner of Income-Tax - 1996(12)LCX0147 Eq 1998 (099) ELT 0200 (S.C.). It is contended that in the decision in the case of M/s. National Thermal Power Co. Ltd. it is held that the question of law such as correct classification of goods can be raised before the Tribunal for the first time even if it involves verification of facts. It is stated that since such plea goes to the root of the matter and the Tribunal being the second Appellate forum, it would not be just and reasonable to deny an opportunity for reaching the correct decision.
4. We have perused the Misc. petition filed by the appellants. In paragraphs 19.05, 19.07 and 19.10 of their petition, they have raised the aforedated additional submissions. In view of the ratio laid down in the above cited decisions, we admit the Misc. petition of the appellants for the limited purpose of pleading the alternative classification of their product AC/DC Drive under sub-heading 8504.00.
5. As already stated above, the item Flasher Unit is classified under sub-heading 8531.00 by the original authority and the same has been upheld by the Commissioner (Appeals). The appellants are claiming its classification under sub-heading 9032.80. During the course of the arguments, the ld. counsel for the appellants fairly conceded the classification of this item under sub-heading 8531.00 in view of the CEGAT decision in the case of CC, Mumbai v. Endee Engineers - 1998(03)LCX0153 Eq 1998 (104) ELT 0403 (Tri.). The ld. counsel for the appellants contends that the cited decision relates to the classification of this item under Sub-heading 8531.10 in the Customs Tariff whereas, under the Central Excise Tariff, the corresponding entry for this item is under sub-heading 8531.00. Therefore, with regard to the classification of this item, the appeal of the appellants is rejected as not contested upholding the orders passed by the lower authorities.
6. The second item under consideration is Thermocouple. It is contended that this issue is also fully covered in favour of the Revenue by the decision of the Larger Bench of the CEGAT in the case of Collector of C. Ex., Bombay v. Fykays Engg. P. Ltd. - 2000 (116) E.L.T 341 (Tri.). In this decision, the item Thermocouple has been held to be appropriately classifiable under sub-heading 9025.00 of the Central Excise Tariff. The same view is held by the Commissioner (Appeals) in the present case. Consequently the classification of Thermocouple under sub-heading 9025.00 is upheld.
7. Another item, the classification of which is challenged by the appellants is - Single Phasing Preventor. The lower authorities in their respective decisions have classified this item under sub-heading 8536.90 or 8536.10 depending upon its end-use whether in the air-conditioning Machinery or otherwise. The appellants are claiming its classification under sub-heading 9032.80. It is contended by the appellants that Single Phasing Preventor is an apparatus used to protect any electrical appliance which in this case is an electric motor. The Heading 90.32 relates to description “Automatic regulating or controlling instruments and apparatus”. The rival classification for this item claimed by the Revenue is under Heading 85.36 covering the description, “Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits. (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders, junction boxes), for a voltage not exceeding 1,000 volts’. The function of this item is stated to be that in case of surge of electric current, the circuit is cut off resulting in saving the apparatus from damage. The appellants are claiming its classification under sub-heading 9032.80 as other instruments and apparatus under heading -Automatic regulating or controlling instruments and apparatus. We are not convinced with their argument. It is observed that admittedly, the function of this item is to cut off the electric current in the event of high surge of electrical energy. Therefore, in our view, it is more appropriately classifiable under sub-heading 85.36. The ld. counsel during the course of arguments submitted that this item is meant for use for a voltage not exceeding 1000 voltage. Therefore, the classification under sub-heading 85.36 as determined by the lower authorities does not call for any interference and the appeal in this regard is rejected.
8. The next and the last item for consideration is AC/DC Drive. It is contended that this is a static converter and its classification is already settled under sub-heading 8504.00 in the Tribunal’s decision in the case of Siemens Ltd. (supra). The ld. DR for the Revenue does not dispute that the item under consideration is covered by the aforesaid decision in the case of M/s. Siemens Ltd. Consequently, we remand the case of classification of the item AC/DC Drive to the Original authority to decide it de novo in the light of the decision of the Tribunal in the case of M/s. Siemens Ltd. (supra). He shall afford reasonable opportunity to the appellants to state their case before arriving at the final decision in the matter.
9. In the result, except for the classification of the item AC/DC Drive which is remanded to the Original Authority for de novo determination in the above terms, the appeal relating to the rest of the items is rejected upholding the order passed by the lower Appellate Authority.
_______ Equivalent 2001 (129) ELT 107 (Tri. - Mum.) Equivalent 2001 (042) RLT 0567