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TMI Blog2005 (7) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of the said "static convertors" manufactured by the appellants. The appellants claimed the classification of the said products under Chapter sub-heading 85.04 of the Tariff Act and cleared the products at the appropriate rate of duty accordingly. By the order impugned in this appeal, the Commissioner classified the said products as "'Panels'' under Chapter Heading 85.37 of the Tariff Act and confirmed the demand of differential duty under Section 11A of the Act, notwithstanding the fact that the appeal of the department against the approval of classification was pending before the Commissioner of Central Excise (Appeals) in pursuance of the order of this Tribunal orders. 1.4 Headings 85.04 and 85.37 reads as follows : 8504.00 Electrical transformers, static converters (for example rectifiers) and inductors. 8537.00 (before amendment in 1997) Boards, panels (including numerical control panels), consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading no. 85.35 or 85.36 for electric control and distribution of electricity, including those incorporating instruments or apparatus of Chapter 90, other than switching ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside the approval of the classification under Chapter Heading 85.04 and to seek classification of the said product under Chapter Heading 85.37. 1.8 Pending the above appeal, by another Show Cause Notice, particulars, the appellants were called upon to Show Cause as to why (i) the differential duty of excise aggregating to Rs. 5,91,41,879/- not be recovered under Rule 9(2) of the Central Excise Rules, 1944 read with Section 11A of the Central Excise Act (ii) Interest @ 20% not be charged on the duty evaded under Section 11AA of the Central Excise Act, 1944 (iii) Penalty not be imposed under Rule 173Q and/or Rule 210 of the Central Excise Rules, 1944, it was inter alia alleged in the said Show Cause Notices that the product cleared by the appellants was not only Static Converter, but Control Panel as the inputs consumed by the appellants were two or more apparatus falling under Chapter Heading 8537.00 instead of 8504.00. Sr. No SCN No. and Date Period Amount (in Rs.) 1. C.EX/RV/L T/PLW/SCND/93 dated 29-7-93 March 93 to June 93 51,43,422.00 2. C.EX/RV/L T/PLW/SCND/93 dated 7-10-93 July 93 to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of Section 11AA of the Act. Hence this appeal. 2.1 After hearing both sides and considering the material, it is found - (a) Revenue's case is based on by relying upon the Modvat declaration filed. The same is established by the components that go into the final product, whose classification is disputed herein. The inputs are - INPUTS SUB-HEAD-ING NO. 1. Transformers 8504.00 2. Current transformers 8504.00 3. Pulse Transformers 8504.00 4. Printed Circuit Board 8534.00 5. Switch 8536.90 6. Programmer Control Switch 8536.90 7. Push Button switch 8536.90 8. Temperature switch 8536.90 9. Fuse link 8536.90 10. Panel Board 8537.00 11. Control Panel 8537.00 12. S.S. Boards Panel 8537.00 13. Panel 8537.00 14. Fuse switch 8537.00 15. Liquid Crystal display 9013.00 16. Electrical Measuring Instruments 9013.00 17. Meter/Micro Meter 9030.00 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can switch cable terminal ends, push button nostel, temperature switch, fuse link, fuse fitting, trip indicator, keyboard switch, solid state relay, read relay, dip switch, timer etc. falling under Heading 8536.00 of the schedule on a panel, thereafter applying the HSN notes under 85.37.00, arrived at classified the entity under Heading 85.37.00. (c) The finding of the Commissioner, in para 24 of the order that the product is an assembly of entities falling under 8536.00 on a common panel, is factually incorrect. The Modvat declaration of the inputs, as per Revenue's case itself, as extracted herein above in para 1.1(a), indicates the disputed entity to be an assembly, resulting from inputs classified under 85.00, 8536.90, 8537.00 90.13 90.30.00 90.33.00. HSN notes under 8537, as relied exclusively by the ld. Commissioner would indicate that 8537 is constituted to be made up of apparatus of referred to in the two preceding headings and gives example of switches fuses on a board, panel, desk etc. or mounted in a cabinet, desk etc. incorporating meters, subsidiary item eg. Transformer, valve, voltage regulators, restate or luminous circuit diagram and these products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specially as to what an entity under classification dispute is and to its function and understanding wisdom of such experts cannot be brushed aside such wisdom cannot be accepted to vest exclusively in Departmental officers. Extensive assistance, especially on technological innovative products should be sought and understood with an open mind and not in a haughty all knowing manner as adopted. That has resulted in an interpretation with blinkers on such interpretations has to be held as incorrect on facts and as arrived. (f) The non-reliance of, on the decisions of CCE(A), on the grounds of the product not being proved to be identical/similar only exhibits a preset mind. No efforts appear to have been made to establish the claim or reject the same on facts. The appellants have produced a certificate dated 3-5-2005 of Electronics Regional Tax Laboratory (West) which confirms the product of M/s. Siemens products to be same as of appellants herein i.e., Static Converter involving static status conversion of AC input to DC or AC output using semi-conductors. Nothing prevented the ld. Commissioner, to exert a Wee bit, to have obtained the same. Non-application of mind or desire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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