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TMI Blog1993 (6) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... uct viz. change over switch in all the appeals and also whether it is excluded under the exclusion clause of the Notification No. 160/86-C.E., dated 1-3-1986 to deny the benefit of exemption under the notification. He said that the dispute with reference to switch fuses and fuse switches is also involved in Appeal No. 5438/92 and 5439/92. The Principal Collector had accepted the claim of the appellants in relation to all the disputed items including fuse switches and switch fuses except for change over switches, as can be seen from the respective orders but the Assistant Collector disallowed the benefit at a later date that too under the same classification list for the subsequent period and the same was confirmed by the Collector (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not bedenied since it is not specifically excluded under the exclusion clause to the notification. For classifying an item under an exclusion clause given under an exemption notification, the burden lies on the department to prove whether the item falls under exclusion clause as it was held in the case of Collector of Customs v. K. Mohan Company Exports [1989 (43) E.L.T. 811 (SC)].The department has not discharged this burden and on the other hand, evidence placed on record clearly shows that change-over switches are different from switches. In response to the query from the department, Bureau of Indian Standards vide its letter dated 19-7-1991, opined that change-over switches are distinct from switches, as commonly known. Even construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the issue with reference to switch fuses and fuse switches in Appeal Nos. 5438 and 5439/92 may be remanded to decide the issue afresh in the light of decision given by the Principal Collector on the very issue in his respective orders. As regards change over switches, he argued that there is no distinction between ordinary switch and multiple switch for the purpose of Central Excise Tariff. He said that there is no difference between either in function or in use and he referred the definition of switch as given in the illustrated dictionary of Electronics and in the technical dictionary which reads as under : Switch 1 - A circuit or device (electronic, elector-mechanical, or mechanical) for opening and closing a circuit or for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the submissions made by both the sides with reference to the facts of the case and on perusal of the records, we are not inclined to remand the matter on the issue with reference to classification of the products viz. switch fuses and fuse switches as requested by the Departmental representative. We find that this issue was well considered by the Principal Collector in his respective orders. Accordingly, concurring with that view, we hold that switch fuses and fuse switches are appropriately classifiable under Heading 85.37 even in Appeal Nos. 5438/92 and 5439/92 as it was rightly argued by the Appellants counsel. 7. Next question for our consideration is whether change-over switches are classifiable under Heading 85.36 or under 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rotecting electrical circuits; and (iii) electrical apparatus for making connection to or in electrical circuits. An apparatus containing two switches in cabinet cannot be considered two or more of such apparatus, to fix under Heading 85.37 as it was rightly observed by the adjudicating authority in all these cases. We concur with this view and accordingly, change over switches is appropriately classifiable under Heading 85.36, In fact, the appellant s counsel too emphasised his arguments with reference to the eligibility of exemption in terms of Notification No. 160/86-C.E. rather than dispute with reference to the respective tariffs. Hence the question remains whether the item in question is excluded under the exclusion clause to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be classified under the items other than one described at (i) of the Serial No. 13 of the Notification No. 160/86. In view of the opinion given by the DGTD being a highest technical body of India and in view of the trade parlance and the test of trade is still paramount as it was held by the Supreme Court in the case of Indian Metal and Farrow Alloys Ltd. v. Collector of Central Excise reported in [1991 (51) E.L.T. 165] and since the item in question is not specifically excluded under the exclusion clause, we do not find any justification to deny the benefit of exemption to the change-over switches in terms of Sl. No. 13 of the above said notification. Accordingly, change-over switches are eligible to the benefit of exemption in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X
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