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TMI Blog2014 (2) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... the additional evidences on record except the product literature. As regards the product literature, the same formed part of the technical/expert opinion adduced by the appellant before the lower authorities and therefore, it is not a new evidence. To qualify as 'programmable process controller', Continuous monitoring of the various parameters such as pressure, flow and temperature level etc. has to be done and comparison should be made of the parameters of the desired value with the actual value and the machine should be capable of bringing the variables to the desired value. None of the machines in the present case undertake these functions nor do they have a measuring device to measure any of these parameters. As per the HSN Explanatory Notes, to fall under heading 9032, the equipment should consist of a measuring device (sensing device, resistance probe, thermocouple, etc.) which determines the actual value of the variable to be controlled and converts it into a proportional electrical signal, an electrical control device which compares the measured value with the desired value and a starting or stopping or operating device (contacts, switches or circuit breakers, relay swi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. We are of the considered view that the Hon'ble Supreme Court's recent judgment in N.I. Systems case (supra), wherein their Lordships elaborately examined the features / attributes of various equipments, including programmable process controllers and programmable logic controllers and classified the goods in question under CTH 9032 90 00, after taking into account the relevant tariff schedule provisions and HSN Explanatory Notes, would be of considerable aid to the lower appellate authority in taking correct decision. 10. Therefore, without taking any view on the rival contentions, we set aside the impugned orders and allow these appeals by way of remand with a request to the learned Commissioner (Appeals) to pass fresh orders in accordance with law and in terms of this order, after giving the assessee a reasonable opportunity of being heard". 2.2 In pursuance to the said direction, the impugned orders have been passed. The adjudicating and appellate authorities have held that the impugned goods do not measure or control parameters such as flow level, pressure, temperature or other variable s of liquids or gases and hence they do not merit classification under CETH 9032 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control equipment like sensors and therefore ought to be classified under Chapter 90.32. It is also contended that the appellant's products are used in various industries for controlling and regulating processes. In the technical report provided by Victoria Jubilee Technical Institute (VJTI), it has been stated that the appellant's products are used for monitoring and controlling processes of various industries for data processing and control applications. In the impugned order also the appellate authority has observed that PLCs are performing specific function of controlling with the help of automatic data processing machines. 3.3 Teleperm ME and Sinaut 8F are process control systems for power plants. It is their contention that even though the products are multiple units, they are tailored to perform the specific function of regulating and controlling various processes in different industries and therefore, must be classified under Chapter 90.32. 3.4 Alternatively, it is pleaded that the products would merit classification under CETH 84.71 as automatic data processing machines as they essentially do processing of data and, therefore, it cannot be classified under CETH 85.37. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions by 25-10-2013. In their submissions by 25-10-2013. In their submissions received on 31-10-2013, the appellant along with their written submissions have enclosed certain additional documents, namely, product literature of the goods involved in the impugned order, affidavit dated 31-10-2013 of Shri. Milind Kulkarni, Head Factory, Automation of the appellant firm, certain technical write ups and block diagrams of the products, certificates/depositions of some of the customers of the appellants and have requested that these also be taken on record. 6. We have carefully considered the submissions made by both the sides. 6.1 We ought to consider first the admissibility of the additional documents now submitted by the appellant first. Rule 23 of the Cestat (Procedure) Rules, 1982 prescribes that no additional evidence shall be admitted by the Tribunal in the normal course, unless sufficient cause is shown and the tribunal should be satisfied that the additional evidence is very relevant for determination of the issue on hand. The Hon'ble Apex Court laid down the principle of admitting additional evidence in the case of Shivajirao Nilengakar Patil vs. Dr. Mahesh Madhav Gosavi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranscribing data on to data media in coded form and machines for processing such data, not elsewhere specified or included." The said entry covers computers and other data processing machines, input or output units whether or not containing storage units in the same housing, printers and storage units. 6.4 Entry 85.37 as it stood at relevant time read as follows: "8537 Boards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading 8535 or 8536, for electric control or the distribution of electricity, including those incorporating instrument or apparatus of Chapter 90, and numerical control apparatus, other than switching apparatus of Heading 8517." As per HSN Explanatory Notes, the Heading covers numerical control panels with built-in automatic data processing machines, which are generally used to control machine tools; programmed switchboards to control apparatus and programmable controllers which are digital apparatus using a programmable memory for the storage of instructions such as logic sequencing, timing, counting and arithmetic to control through digital or analog input/output modules, various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese goods, from the nature of functions undertaken by them are controllers with built in data processing machines and based on the programme written in the memory, monitors the input status and executes the outputs. Thus, on the basis of technical literature produced and the expert opinion adduced, these are programmable logic controllers meriting classification under CETH 8537 of the Central Excise tariff and we hold accordingly. 6.7 As regards the Teleperm ME, Sicomp M, Sinaur 8F, and Coros 2000 it is seen that no expert opinion has been obtained in respect of Coros 2000. Teleper ME, as per the technical opinion, is an automatic data acquisition and process control computer system consisting of an automation system and operator communication system. The automation system processes the data and converts into digital form as per the requirement of automation. The communication system accepts the required process status and fault information from automation system and displays to the operator which helps him in quick trouble shooting in the case of fault. As per the product literature, Teleperm ME is a "distributed control system capable of fulfilling all the tasks of power plant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Chapter 84, then the whole falls to be classified in the heading appropriate to that function." From the product literature, it is obvious that the principal function of these machines are control of machines and not computation of data. Automatic processing of data is with a view to perform the control function. Therefore, as per Section Notes 3 and 4 cited above, the product is a Programmable Logic Controller meriting classification under CETH 8537. The other expert opinion do not throw much light on the functional capability of the equipment and hence cannot be given much weightage. 6.8 As regards Sicomp M and Coros 2000, they are powerful processing systems for a wide variety of applications and these are hard disk based multiuser system. These equipments consist of interface for connecting external peripherals. They control and manage process I/O image, cyclically update plant flow diagrams, short-term archiving of curve value, on-line management functions and co-ordination functions between several terminals. They are designed to be used in conjunction with programmable control systems of the SIMATIC family discussed above. Thus they are not mere data processing syste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointing out differences between a programmable logic controller and programmable process controller. The said 37B order is reproduced below: "2. Representations have been received from trade pointing out that programmable logic controller and programmable process controllers such as process control equipment/distributed control systems are two different types of controls classifiable under different headings of central excise tariff i.e. heading 85.37 and heading 90.32 respectively. The following specific differences have been pointed out between two types of controllers. Programmable Logic Controller Programmable Process controller These are for controlling various types of machines These are for controlling various types of processes Operations depends on set of pre-determined operations Operations depend on factor to be controlled Operations based on desired sequence of operations Operation operates basically by continuously monitoring and maintain the variable to be controlled such as pressure, flow, temperature, level etc. with/at pre-determined level. No regulatory function Regulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clarifications it is seen that to qualify as 'programmable process controller', Continuous monitoring of the various parameters such as pressure, flow and temperature level etc. has to be done and comparison should be made of the parameters of the desired value with the actual value and the machine should be capable of bringing the variables to the desired value. None of the machines in the present case undertake these functions nor do they have a measuring device to measure any of these parameters. As per the HSN Explanatory Notes, to fall under heading 9032, the equipment should consist of a measuring device (sensing device, resistance probe, thermocouple, etc.) which determines the actual value of the variable to be controlled and converts it into a proportional electrical signal, an electrical control device which compares the measured value with the desired value and a starting or stopping or operating device (contacts, switches or circuit breakers, relay switches). From the technical literature, it is seen that the impugned goods do not satisfy the criteria laid down. Therefore, they do not merit classification under Heading CETH 90.32. 6.12 The appellant has relied on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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