1989 (8) TMI 177 - AT - Central Excise

Summary

Issues Involved:

1. Classification of copper-clad laminates.
2. Classification of unclad laminates.
3. Jurisdiction of the Assistant Collector to issue the show cause notice dated 1-9-1986.

Detailed Analysis:

1. Classification of Copper-Clad Laminates:

The appellants contended that copper-clad laminates, whether glass fabric-based or paper-based, should be classified under Heading 74.06 of the new Tariff, which reads "Copper Foil." They relied on the Tribunal's decision in the Metro Wood Engineering Works case, which concluded that copper-clad laminates were classifiable as copper foil under sub-heading 7406.00. The Tribunal agreed with this classification, noting that the copper foil gave the product its essential character. Furthermore, the CBEC's Circular F.No. 93/105/86-CX. 3 also supported this classification. The Revenue did not provide any counterarguments against this classification. Consequently, the Tribunal ordered the classification of copper-clad laminates under sub-heading 7406.00 of the new Tariff.

2. Classification of Unclad Laminates:

The appellants argued that unclad laminates should be classified under Heading 85.46 of the new Tariff, which pertains to "Electrical insulators of any material." They supported their claim by referencing previous decisions, including the Bakelite Hylam case, where industrial laminates were identified as electrical insulators. The Tribunal noted that the nature of the goods had not changed with the new Tariff and that the specific sub-heading 8546.00 for electrical insulators should be preferred over the general sub-heading 3920.31 for rigid plastic sheets. The Tribunal also considered the statutory Chapter Note 2(n) to Chapter 39, which excludes articles of Section XVI (machines and mechanical or electrical appliances) from Chapter 39. Therefore, the Tribunal concluded that unclad laminates, being electrical insulators, should be classified under Heading 85.46 of the new Tariff.

3. Jurisdiction of the Assistant Collector to Issue the Show Cause Notice:

The appellants challenged the jurisdiction of the Assistant Collector to issue the show cause notice dated 1-9-1986. They argued that the earlier classification order dated 30-5-1986, which classified the goods under Heading 85.46, had acquired finality since the Collector did not exercise his powers under Section 35E(2) to challenge it. The Assistant Collector, therefore, lacked jurisdiction to issue a new show cause notice seeking to modify the earlier order. Additionally, the appellants contended that the Assistant Collector was incompetent to issue the notice alleging wilful mis-statement and suppression of facts, as only the Collector could issue such a notice under Section 11A(1) of the Central Excises and Salt Act. The Tribunal agreed with the appellants, stating that the statutory requirement for the notice to be issued by the Collector in cases of fraud, collusion, or wilful mis-statement or suppression of facts could not be bypassed. Consequently, the show cause notice dated 1-9-1986 was deemed incompetent and without jurisdiction, rendering the subsequent orders invalid.

Final Order:

On merits, the Tribunal ordered the classification of:
- Copper-clad laminates under Heading 74.06 of the new Tariff.
- Unclad laminates under Heading 85.46 of the new Tariff, applicable to industrial laminates with applications primarily or mainly attributable to their electrical insulating properties.

The appeal was allowed with consequential relief to the appellants, both on merits and on jurisdictional grounds.