2002(05)LCX0126

IN THE CEGAT, WEST ZONAL BENCH, MUMBAI

S/Shri Gowri Shankar, Member (T) and G.N. Srinivasan, Member (J)

COMMISSIONER OF CUSTOMS, AHMEDABAD

Versus

ELECTROTHERM (INDIA) LTD.

Order Nos. 1523-1524/2002-WZB/C-II, dated 16-5-2002 in Appeal No. C/26/2002-Mum.

Advocated By :   Shri Uma Shankar, DR, for the Appellant.

Shri S.J. Vyas, Advocate, for the Respondent.

[Order per : Gowri Shankar, Member (T)]. - We do not see any merits in the application filed for stay of operation of the order of the Commissioner (Appeals) impugned in the appeal. We, are however, of the view that the appeal could be disposed of and therefore with the consent of both sides, take it up.

2. The question before the Commissioner (Appeals) in the order impugned before us, the classification in the Customs Tariff of the water-cooled electric resistor that the respondent imported. In the bill of entry that it filed for its cleared, the importer had claimed classification in Heading 8533.29. Heading 85.33 is for electric resistor other than heating resistor. The department was of the view that this classification was incorrect. In his order of assessment, the Deputy Commissioner held the product classifiable in sub-heading 8548.90 which is a residuary heading of Chapter 85 and includes “electrical parts of machinery or apparatus, not specified or included elsewhere in this chapter.”

3. On appeal, the Commissioner (Appeals) accepted the classification claimed by the importer. Hence, this appeal by the department.

4. The reason that the Deputy Commissioner advances for his conclusion that the goods under consideration are not resistor is the fact that there was provision to cool the resistor by means of flowing water. From the sample of the product that we have seen, it appears that the resistor element is wound round a core which is cooled by means of water flowing in a pipe contained. The external casing also contains cooling fan. The Deputy Commissioner has been guided by this fact and concludes that the product is different from the resistor element, which he has actually found to be with the resistor. The Commissioner (Appeals) has noted that the Deputy Commissioner has accepted that the goods are resistor and found that their performance is improved by the provision for water cooling. Therefore, the principal function being that of a resistor it should be classifiable as the resistor.

5. In our view, there is no question in this case of a principal and subsidiary function. The item is nothing other than an electrical resistor. The fact that it has the water cooling and other features to control the increase in the temperature that is caused as a result of resistor does not detract from the fact that it is a resistor. It is not as if the item in question performs two functions one of electrical resistor and the other of cooling or carriage of water. The flow of water through it is clearly intended to contribute to the function of the resistor. There is therefore no reason why it should be treated as the matter other than resistor. The example of an oil immersed resistor specifically mentioned in the Explanatory Notes to the Harmonised System of Nomenclature to Chapter Heading 85.33 at Page 1500 of 6th Edition is apt. We, therefore, find no reason to interfere.

6. Appeal dismissed.

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Equivalent 2002 (144) ELT 0553 (Tri. - Mumbai)