KAPADIA, J. - (1.) THESE appeals under section 35L of Central Excise Act, 1944, (hereinafter referred to for the sake of brevity as "the said 1944 Act") are filed by the Department seeking to challenge the order dated 26.4.1999 passed by the Customs Excise and Gold (Control) Appellate Tribunal (for short 'the tribunal') in appeal no. E/689 692 of 1995.
(2.) THE facts giving rise to these civil appeals, briefly stated, are as follows: 2.1. On 17th December, 1993 M/s. Eswaran and Sons Engineers Limited (hereafter referred to as 'the assessee') was engaged in the manufacture of Minimum Oil Circuit Breakers. THE assessee paid duty by classifying the same under tariff sub heading 8535 of Central Excise Tariff Act, 1985. According to the Department the item was classifiable under sub heading 8537. Accordingly, four show cause notices were issued on; 17.12.1993 for the period 30.6.1993 to 31.8.1993; show cause notice dated 4.4.1994 for the period 13.9.1993 to 30.9.1993; show cause notice dated 31.5.1994 for the period 1.11.1993 to 28.2.1994 and show cause notice dated August 1994 for the period March 1994 to August 1994. By the aforestated four shows cause notices, the Department called upon the assessee to pay differential duty of Rs.9,69,638/- covering a period from 30.6.1993 to 31.8.1994. By the said four show cause notices, the Department proposed to revise the classification from sub heading 8535 to sub heading 8537. 2.2. By reply dated 4.2.1994 the assessee submitted that they were manufacturers of electrical goods falling under Chapter 85. THEy were manufacturing Switchgear Products coming under sub headings 8535.00, 3536.90, 8537.00 and 8538.00. THEy submitted that Minimum Oil Circuit Breaker was classified, right from inception, under tariff sub heading 8535.00 as it is an apparatus used for switching and protecting the electrical circuit in cases where the voltage exceeded 1000V. THE assessee contended that the demand for duty was not maintainable because the said Minimum Oil Circuit Breaker was one single apparatus having function of breaking the current under abnormal conditions such as short circuit. 2.3. On the other hand, it was the case of the Department that the components of Minimum Oil Circuit Breaker performed individual functions within the said Circuit Breaker and, therefore, cannot be termed as a separate apparatus. According to the Department Minimum Oil Circuit Breaker (outdoor) was put on a control panel for controlling the electricity current. THErefore, according to the Department the item in question came within sub-heading 8537. 2.4. By order dated 19.12.1994, the Assistant Collector of Central Excise came to the conclusion that Minimum Oil Circuit Breakers were classifiable under sub heading 8537.00 and not under sub heading 8535.00. Reliance was placed on the Explanatory Note to Chapter 85 as well as HSN for coming to the conclusion that Circuit Breakers were classifiable under sub heading 8537.00. 2.5. Being aggrieved by the order of the Assistant Collector, the assessee went in appeal to the Collector of Central Excise (Appeals). Before the appellate authority the assessee placed reliance on a Circular dated 14.7.1994 issued under Section 37B clarifying that the item in question would fall under tariff sub heading 8537.00 prospectively. It was urged by the assessee before the appellate authority that in view of the said Circular dated 14.7.1994 the reclassification ordered should be given prospective effect and to that extent alone demand should be made from the assessee. On merits, the assessee contended that there were two types of Minimum Oil Circuit Breakers, namely indoor and outdoor, which consists of electrical components such as fuse, terminals, socket outlet etc. THE assessee, therefore, contended that the product came under sub heading 8535.00. By order dated 1.5.1995 the appeal was dismissed. 2.6. Being aggrieved by the aforestated two orders, the assessee preferred appeal to the Tribunal. By the impugned judgment, the Tribunal held that Minimum Oil Circuit Breaker was classifiable under sub heading 8537 and not under sub heading 8535. However, by the impugned judgment, the Tribunal held that in view of the Circular dated 14.7.1994 issued by the Board under Section 37B the quantum of duty leviable needed recalculation as the said Circular dated 14.7.1994 operated prospectively. THE Tribunal noted that the assessee had pre-deposited Rs.4,00,000/-whereas the amount payable on the basis of the Circular dated 14.7.1994 fell within the amount of Rs.4,00,000/-: Accordingly, the tribunal remitted the matter to the Assistant Commissioner concerned to recalculate the duty payable by the assessee and refund the balance. Hence, these civil appeals by the Department. Shri A. Subba Rao, learned advocate for the Department, submitted that in the present case the first show cause notice was issued on 17.12.1993, much prior to the Board's Circular dated 14.7.1994. It was submitted that the said show cause notice was not based on the Circular dated 14.7.1994, but, it was on the basis of the interpretation placed on the aforestated two entries by the Assistant Collector. Therefore, it was urged that the tribunal had erred in restricting the demand raised by the Department to the period on and after 14.7 1994. Despite notice none appeared for the assessee.
(3.) BEFORE dealing with the above arguments, for the sake of convenience, we reproduce hereinbelow the relevant heading, sub heading and description of the goods, along with the rate of duty under Chapter 85 which dealt with electrical machinery and equipment and parts thereof. JUDGEMENT_132_JT1_2005Html1.htm On merits, the Tribunal in the present case following its judgment in the case of Crompton Greaves Limited v. C.C.E., Aurangabad, has held that Circuit Breakers are panels equipped with Circuit Breakers classifiable under sub-heading 8535 and are also equipped with one or more apparatus under sub heading 8535.00 or under sub-heading 8536.00 and consequently such panels were classifiable under sub heading 8537.00 of Central Excise Tariff. Against the said decision, the assessee has not filed any appeal to this Court.;