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TMI Blog2006 (11) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 and claiming concessional rate of duty at 5% under Notification No. 52/93 dated 28-2-1993. The said classification list was approved by the jurisdictional Assistant Commissioner, on 10-6-1993. Thereafter, the assessee cleared the said goods in accordance with the approved classification list. When this approved classification was proposed to be revised to reclassify the Single Panel Circuit Breakers under Heading No. 85.37 of the tariff, such re-classification can take effect only prospectively from the date of communication of the show cause notice proposing re-classification. In the instant case, the show cause notice was communicated to the assessee only on 31-12-1993. Therefore, as rightly urged by the learned counsel for the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1985 and availing the benefit of notification No. 52/93 dated 28-2-1993 attracting duty @5% ad valorem. 6. A show cause notice was served on the assessee to classify the goods in question under CSH 8537.00 attracting duty at the rate of 20%, as single control panel manufactured by the assessee consists of a panel equipped with more than two apparatus of Heading Nos. 8535 and 8536 (like circuit breaker/fuses/ switches/plugs/socket/relays). The relevant tariff entries are quoted herein below :- "Heading 85.35 :- electrical apparatus for switching of protecting electrical circuits, or for making connection or in electrical circuits (for example -switches, fuses, lightning arrest voltage limiters, surges suppressors, plugs, junction boxes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the order and allowed the appeal. The department preferred an appeal against the said order in the Customs, Excise and Service Tax Appellate Tribunal, Bangalore which relied on a ruling of the Tribunal in the case of Eswaran Sons Engineers Ltd. v. CCE, Madras reported in 1999 (112) E.L.T. 1011, which upheld the classification under Heading 85.35 and has noted that the Board's Circular (Section 37B Order) issued on 14-7-1994, does not have a retrospective effect but only a prospective effect to classify the item under Chapter 85.37. Since the period under dispute is 24-6-1993 to 22-11-1993 and 1-12-1993 to 27-2-1994, to 22-11-1993 and 1-12-1993 to 27-2-1994, which is prior to the issuance of CBEC Circular No. 32/8/94-CX dated 14-7-1994 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Central Excise (Appeals), discharging appellate functions. In view of the proviso to Section 37B, the said circular dated 14-7-1994 issued by the Board was not applicable to the facts of the said case. Therefore, he would submit the circular dated 14-7-1994 had no application to the facts of the present case. It is further submitted that switches, fuses, relays, plugs, junction boxes etc. have been given the status of separate/individual items. Without these items also main equipments/machinery cannot function. Therefore, though they may be parts of certain machinery, they have to be classified under those headings where they are specifically mentioned/classified. Thus, the panels manufactured by the assessee contain more than two ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectively. It is further submitted that for the period in question, trade notices had been issued classifying the circuit breakers under Heading No. 85.35 or 85.36 depending upon the voltage, which are binding upon the Department. Thus, he submitted that the circuit breaker is classifiable under Heading 85.35. He would further submit that the Tribunal has allowed the appeal filed by the respondents by following its own order in the case of Eswaran and Sons (supra) and has not given any finding on the merits of the matter. 14. We have perused the order impugned in this appeal, other connected records, and considered the rival submissions. 15. In the instant case, assessee had filed a classification list effective from 1-3-1993, classifyi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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