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TMI Blog2000 (1) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... asuring instruments, for transferring the reference point from the location of the sensor to the gauge for reading out the temperature. When the matter came-up before the Collector of Central Excise (Appeals), he ordered the goods to be classified under heading No. 90.25 of the Central Excise Tariff (and not under sub-heading No. 8544.00 as determined by the adjudicating authority, nor under sub-heading No. 9033.10 as claimed by the manufacturer). In the grounds of appeal, the Revenue pleaded as under :- The Collector of Central Excise (Appeals) had failed to(1) appreciate the fact that heading No. 85.44 was wide enough to cover the product in question as the same was an insulated cable used as a conductor in temperature control equipment, by means of generation of electric motive force (EMF) which in fact means that the current flows through the cables. The Harmonised Commodity Description and Coding System (HSN)(2) Explanatory Notes to Heading No. 85.44 also explains that Heading No. 85.44 covered insulated electric wires, cables and other conductors used as conductors in electrical machinery, apparatus or installation of the insulated cable which may be of single strand or mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... electric motive force would mean that the current flows through the cables and it was through the flow of the current that the temperature of the furnace was indicated on pyrometer and that the current was directly proportionate to the electro motive force. It was observed that Heading No. 85.44 of the Central Excise Tariff covered insulated cable which could be wholly of one metal or of different metals and that this Heading No. 85.44 was a broader heading than the erstwhile Item No. 33 B of the earlier Central Excise Tariff, and that the test reports and the tariff advices relating to the earlier Item No. 33B were not applicable to the present Heading No. 85.44 of the new Central Excise Tariff. It was held that the compensating cables were classifiable under Heading No. 85.44 and not as accessory of pyrometer under Heading No. 90.33 of the Central Excise Tariff. In the subsequent decision in the case of Collector of Central Excise, Mumbai v. Fibre Products - 1997 (96) E.L.T. 618 (Tribunal) (Final Order No. E/1499/97-BI, dated 20-10-1997 [1997 (96) E.L.T. 618 (Tribunal)] in Appeal No. E/4593/89-B) the Tribunal after relying upon the Central Board of Excise & Customs Tariff Advic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the extension wire to connect the two, was in the nature of electrical insulated wire. It was also his submission that the subsequent decision after the decision in the case of Toshniwal Cables did not notice that earlier decision and thus the subsequent decisions were per incuriam and had no binding effect. He pleaded that the compensating cable was correctly classifiable under Heading No. 85.44 of the CET. In support of his contention, he relied upon a number of decisions of the Supreme Court and that of the Tribunal. Shri M.H. Patil, Advocate submitted that for measuring the temperature in the electric furnace, thermocouple was used as a sensor. The temperature is recorded by the pyrometer, the measuring instrument. The compensating cable connects the pyrometer with the thermocouple. The Revenue had sought to classify the compensating cable under Heading No. 85.44 which covers insulated cables, while the respondent had pleaded for classification under Heading No. 90.25/90.33 of the Tariff. Heading No. 90.25 covers pyrometers while Heading No. 90.33 covers accessories for machines under Chapter 90 (which covers pyrometers). It was his contention that the compensating cables were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... namely, thermocouple to the pyrometer cannot be treated like the manner as transmission of electrical energy from one point to another through the cable. 6.Earlier the Tariff Entry stood as 33B in relation to electric wires and cables not elsewhere specified in the following terms :- "Insulated wires and cables of copper, aluminium or other metals and alloys, whether sheathed or unsheathed, the conductor of any core of which not being one specially designed as a pilot core, has a sectional area not exceeding 1.5 square millimetres in the case of copper, or not exceeding 2.5 square millimetres in the case of aluminium or of not more than equivalent conductivity as of copper in the case of other metals and alloys." While the entry so stood, a question arose as to what is the nature of compensating cable which is similar to the mineral insulated thermocouple leads concerned in this appeal. That issue was considered by the Department vide page 20 of the order. The Board came to the conclusion that compensating cables are not classifiable as electric wires and cables as they are not suitable to extend the flow of electric current as such. The Department came to the specific finding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fically brought it within the ambit of Heading 85.44. This having not been done, the description of the goods as thermocouple leads cannot be taken as a sufficient ground to bring it as an item coming under Heading 85.44. 9.Thermocouple leads known as compensating cables are used to bring the signals from the thermocouple head to the temperature-monitoring equipment. The junction between dissimilar metals generate thermal electromotive force. The impulses generated by thermal electromotive force are similar to electric power. The transmission of that electromotive force from one point to another cannot in any situation be treated as transmission of electrical energy as understood by that term. Learned DR appearing in this case has fairly and rightly conceded before us that thermocouple leads or compensating leads cannot be used for transmission of electrical energy from one point to another. So, it cannot be equated with any of the wires, cables or optical fibre cables mentioned in Heading No. 85.44. 10.Heading 90.25 deals with : "Hydrometers and similar floating instruments, thermometers, pyrometers, barometers, hygrometers and psychrometers, recording or not, and any combinati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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