9911796707
TMI Blog1995 (2) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed Cross Objections, while in the appeal filed by the Revenue - CCE, Pune, the respondent - Ravi Industries have filed the Cross Objections. All the three appeals were fixed for common hearing but separate arguments were advanced in respect of different appeals. As we find that the goods under consideration are not the same in these separate appeals, although they are being disposed of by this common order, we had thought it fit to discuss the goods separately wherever considered necessary. 2. VEA were engaged in the production of Bus Ducts, which they classified under sub-heading No. 8538.00 of the Schedule to the Central Excise Tariff Act, 1985 (hereinafter referred to as `Tariff'), as a part suitable for use with the apparatus (Panel & Distribution Boards) of sub-heading No. 8537.00 of the Tariff. It was found on examination that for manufacture of these Bus Ducts, Aluminium bars of required length were arranged in a row and they were supported by insulators and kept inside a metal duct. They were used with lightening arrestors, surge suppressors, potential transformers, etc. It, therefore, appeared that they were an accessory to an electrical power equipment and pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 was applicable to the door, panels, locks, Cabinets, Consoles and other bases, equipping with two or more apparatus of either Heading No. 85.35 of the Tariff or No. 85.36 of the Tariff, for electrical control and distribution of the electricity, and that bus bar distribution chamber was not satisfying the pre-condition of Heading (sic) of the Tariff. In case of bus bar, he observed that it functions more or less as the conductors of electrical power, and could be considered as insulated conductor, and merited classification under sub-heading No. 8544.00 of the Tariff. The Collector of Central Excise (Appeals), Pune relied upon the Explanatory Notes to the HSN Tariff Heading No. 85.37 and ruled that the goods in question were more closer to sub-heading No. 8537.00 of the Tariff than the sub-heading No. 8544.00, and that they were correctly classifiable under sub-heading No. 8537.00 of the Tariff. Against this order of the Collector of Central Excise (Appeals), the Revenue has filed the present appeal. The Respondent-assessee have filed Cross-Objections. The Revenue has sought classification under sub-heading No. 8544.00, while the assessee have claimed classification under sub-hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expert opinion could not be faulted unless better and more solid evidence from other experts is obtained. He sought the classification of their product under sub-heading No. 8537.00. 8. In the case of C&S, Shri P.S. Bedi, the Ld. Consultant stated that their goods were a type of cabinet, consisting of conductors and other items. In all, there were 11 items in the cabinet and that their proper classification was under sub-heading No. 8537.00. 9. Shri V. Lakshmi Kumaran, the Ld. Advocate appearing for VEA, at the outset, stated that the appellants were withdrawing the ground No. 1 on the amendment to the grounds of appeal. He submitted that the goods under consideration were to be classified under sub-heading No. 8536.90 of the Tariff, but fairly admitted that the classification under Heading No. 85.36 of the Tariff was not before the lower authorities. Their claim before the Assistant Collector of Central Excise was for the classification under sub-heading No. 8538.00, and the Collector of Central Excise (Appeals) held that the goods were classifiable under sub-heading No. 8544.00. He had denied them the benefit under Notification No. 69/86-C.E., dated 10-2-1986. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication under sub-heading No. 8536.00 has not been claimed on the basis of some decision of the Tribunal or any other authority. Reference was also made to the Tribunal's decisions in the cases of :- (i) Collector of Central Excise, Rajkot v. Surgichem [1987 (27) E.L.T. 548 (Tribunal)]; (ii) D.C.W. Ltd. v. Collector of Customs, Kandla [1994 (73) E.L.T. 107 (Tribunal]; (iii) Reckitt & Colman of India v. Collector of Central Excise, Bangalore [1994 (71) E.L.T. 44] With regard to the product of VEA, it was mentioned that the bus bars were insulated with heat shrink sleevings and these sleevings were for insulation. These are conductors and are insulated conductors. Bus duct is only a housed bus bar, and was meant for making connections to or in electrical circuits. The function of the item was to conduct the electricity with minimum loss, and were rightly classifiable under Heading No. 85.44. As regards the time bar, the Ld. SDR relied upon the order of the Collector and referred to the Collector's conclusion that there was positive act of misleading and misdeclaration and there was a wilful mis-statement and that the proviso to Section 11A of the Central Excises and Salt Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under different sub-headings No. 8538.00/8537.00 and 8536.90. In the case of VEA an alternative plea was also made at the time of hearing before us for classification under sub-heading No. 8536.90. 19. Now, let us have an idea of the products under consideration. M/s. Ravi Industries were licensed to produce goods under Chapter 85 of the Tariff. They have described their goods as bus bar distribution chamber having a three phase, 4 wire system with one neutral conductor. The four naked Copper strips called bus bars are in the nature of conductors and are supported by porcelain/China clay to prevent flow of electricity in the metal box housing the conductors. The assessee had stated that the porcelain supports work as an insulator in the bus bar distribution chamber. The housing is of the sheet metal. No apparatus except the conductors are housed in the chamber. Although it is named as distribution chamber, it is in the nature of transmitting current from the main to individual supply lines. The principal functioning of bus bar distribution chamber is receiving electricity from the main line and transmitting it to several consumers through sub-lines. It dispenses with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In bus ducts switches are not connected; it is designed for use in the indoor installation. According to the CCE, Allahabad, they connect one Switch panel board to another Switch panel board, for carrying electric current. 22. As mentioned above, in all the three appeals the Revenue had sought to classify the goods under sub-heading No. 8544.00. Sub-heading No. 8544.00 of the Tariff under which the Revenue has sought to classify the goods covers `Insulated (including enamelled or anodised) wire, cable (including coaxial cable) and other insulated electric conductors whether or not fitted with connectors, optical fibre cables made up of individually sheathed fibres, whether or not assembled with electric conductors or fitted with connectors." The form in which the excisable goods are before us, they are neither wire nor cable, they are also not insulated electric conductors. Bus bars which are used in the goods under consideration are conductors but the bus bar distribution chamber, LT bus duct or bus duct as presented for assessment could not be considered as a conductor. If bus bars, (which are a heavy rigid metallic conductor used to carry a large current or to make a com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-43 of the paper book that the equipment description covers switches, fuses, thermostate space heater, junction box (for connection of space heating supply and other connections) adopter, bend nut, bolt and washer and insulator. Space heater provided is controlled by common switch, fuse and thermostat to be provided in the incoming feeders. Without fixing all the above apparatus, the bus duct could not be considered as complete. Bus duct manufactured by C & S is in the form of a cabinet and is equipped with the electrical apparatus for making connections in electrical circuits and for the distribution of electricity. In the memo of appeal the appellants have described their product as under : "F. That the learned lower authorities have also failed to appreciate that Heading 85.44 covers insulated wires, cables or insulated conductors whereas the bus ducts use certain conductors which are totally bare and not insulated and that they carry high voltage and high tension currents for the purpose of distribution with switchboard or from one switchboard to another. It is not only that the conductors viz. aluminium bus bars, copper expansion joints, lighting arrestors, junction box ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the same voltage but with phases differing by one-third of a period. The conductors are in the nature of bars, and different bars for different phases are indicated by different colours. The whole of the BBDC is in the nature of an apparatus but the individual bars could not be considered as an apparatus. The assessee had admitted that "for the purpose of classification of product, existence of two or more apparatus of Chapter Heading No. 85.35 or 85.36 is a must", but have not identified as what those apparatus are there in the product BBDC. We find that there is no apparatus of the nature mentioned in sub-heading No. 8537.00 in the BBDC. There is nothing sort of an assembly in the BBDC. We therefore, consider that the goods under consideration are not classifiable under sub-heading No. 8537.00. In the case of Havell's Industries v. CCE - 1993 (68) E.L.T. 353 (Tribunal), the Tribunal in para 7 of their order had stated that the contention that "since there are switches put in the cabinet and hence, there are two apparatus housed in a cabinet and accordingly they are classifiable under Tariff Heading No. 85.37" was not convincing. Although, the assessee had claimed classifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UITS This apparatus is used to connect together the various parts of an electrical circuit. It includes : (A) Plugs, Sockets and other contacts for connecting a movable lead or apparatus to an installation which is usually fixed. This category include : (1) Plugs and sockets (including those for connecting two movable leads). A plug may have one or more pins or side contacts which match corresponding holes or contacts in the socket. The pin or one of the pins may be used for earthing purpose. (2) Sliding contacts such as brushes for motors and current-collectors for electric traction vehicles, lifting appliances, etc. (overhead or third rail collectors, etc.) other than such articles of "carbon" or graphite (Heading No. 85.45). They may consist of block metal, wire cloth or laminated strip, and remain in this heading even when coated with an external lubricating layer of graphite. (3) Lamp or valve sockets and lamp-holders. Certain lamp-holders are in the form of candles for mounting in candelabra or are designed to form a bracket against a wall; these remain classified here provided their main function is to act as lamp-holder: Plugs and sockets, etc., ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing No. 8536.90. The appellants have described their process of manufacture as under :- "3. The process of making the bus duct in question may be set out. The appellants buy from outside the duty paid Aluminium/Copper flats or bars which are of uniform in length of 3.6 meters. These aluminium/copper flats are either painted with different colours or sleeved with heat shrinkable sleeving for easy identification of individual phase and neutrals. The ends of the aluminium/copper flats are drilled to provide holes. Two or three such aluminium/copper flats are joined together with aluminium joint plate and bolted. Three or four such joined aluminium/copper flats are arranged on a fabricated angle frame supported by supports made of Dough Moulding compound or sheet moulding compound. Thereafter the angle frame on which the aluminium/copper flats are arranged, is covered by steel sheets with suitable ventilating grills. The grills are covered with perforated sheets. Thus the resultant product is housing or cubicle consisting of bars aluminium/copper flats arranged lengthwise by means of support on a fabricated angle frame. Each such housing is of length of 3.6 meters. The aluminium ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m manufactured by the appellant company. In this cubicle, the aforesaid bus duct is used. The bulk of the bus duct manufactured in the aforesaid manner is being used in the LT panel. In other words, the bus ducts made in the aforesaid manner is also captively consumed in the manufacture of LT panels. The bus ducts is also cleared by the appellant's company separately." The Revenue in the written submissions have also described the goods as under :- "5. Considering the above principle and applying the same in the instant case it is clear that the nomenclature of the product is `bus duct'. The item `bus duct' has not been specifically mentioned in any of the headings. Therefore, only by virtue of nomenclature it may not be possible to classify the goods. Now coming to the second and third aspect of the classification i.e. character and function, it is seen that the character of the product is that of an insulated conductor and the function of the impugned goods is to conduct electricity from one part of the installation to the other part. It may be from transformer to switch gear or from transformer to any other part as mentioned by the Collector in his adjudication order. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of panel board and distribution board. (Please refer to classification lists placed at pages 4 to 15 of the paperbook). At Sl. No. 3 of these classification lists the appellants have declared the bus ducts and claimed that these are used in the manufacture of panel board and distribution board and hence bus ducts as a part suitable for use with the apparatus of Heading 85.37 mentioned at Sl. Nos. 1 and 3 of the classification list. These classification lists have been approved by the Assistant Collector without any objection." Again in para 14 of their submissions dated 18-10-1994 they have stated as under :- "14. On the question of limitation, the appellants referred to the approved classification lists, gate pass and assessed R.T. 12 returns etc., wherein they have specifically referred to the description of the product as bus duct and claimed classification under Heading 85.38. It was submitted that the duty was paid on the product in question under Heading 85.38 as per the approved classification lists and hence the question of demanding duty by invoking the extended period of limitation does not arise. The appellants have referred to and relied upon the decisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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