Arijit Pasayat, J. - (1.) Challenge in these appeals is to the order passed by Customs Excise and Gold (Control) Appellate Tribunal, New Delhi (in short the CEGAT). By a common order CEGAT dismissed the two appeals filed by the appellant. The issue involved in the appeals was whether "Actuators" were classifiable under sub-heading 85.43 as claimed by the appellant or under heading 85.01 of the schedule to the Central Excise Tariff Act, 1985 (in short the Tariff Act) as contended by the revenue. The demand made was confirmed by the Commissioner (Appeals). The stand of the appellant before the CEGAT was that in CCE vs. Guindy Machines Pvt. Ltd. [1999(113) ELT 610] and in the case of Audco India Ltd. vs. Commissioner of Customs [1999 (106) ELT 524] it has held that "Actuators" are not classifiable under heading 85.01. Commissioner (Appeal) relied on the decision in CCE, Bombay vs. Seimens (I) Ltd. [2000 (119) ELT 167] where it was held that the "Actuators" were classifiable under Heading 85.01. Thus there were conflicting decisions in the matter.
(2.) Learned counsel for the Revenue submitted that Guindys case (supra) was distinguished by the Tribunal in Seimens case (supra) by observing that the product involved in the said case was "Electromechanical Actuator" which was considered as a part and accessory suitable for use solely or principally with the machine of heading Nos. 84.56 to 84.65. In that view of the matter there is no necessity to refer the matter to the Larger Bench. The Tribunal referred to the decisions and with reference to the factual position held that the view in Seimens case (supra) was applicable. Factually it was noticed that Electric Valve Actuator falls under heading 85.01 and there is no contrary mention in the Central Excise Tariff. The product is to be classified under Heading 85.01 only. With reference to the write up on Electrical Actuator it was found that these are required to regulate flow. The distinction with Guindys case (supra) was noticed by observing that the product involved was "Electromechanical Actuator" which was considered as part and accessories suitable for use solely or principally with the machines of Heading Nos. 84.56 to 84.65. Reference was also made to the Explanatory Notes of H.S.N.
(3.) In support of the appeal, the stands taken before the CEGAT was reiterated. It was submitted that the HSN can be relied on if goods are identical. In these cases goods are not identical.;