TaxTMI 
TaxTMI 
2006 (11) TMI 202
X X X X Extracts X X X X
X X X X Extracts X X X X
....a, learned senior counsel for the appellant and Mr. A.R. Madhav Rao, learned counsel for the respondent. 4. The issue involved in the present appeal is whether the Single Panel Circuit Breakers are classifiable under CSH 8535.00 (rate of duty 5%) as claimed by the assessee or under CSH 8537.00 (rate of duty 20%) as per the revenue and whether the Board's Circular F. No. 32/8/94-CX (Section 37B Order) dated 14-7-2004, which has clarified that the Single Panel Circuit Breakers are classifiable under Chapter 85.37, has retrospective effect. 5. The assessee is engaged in the manufacture of electrical appliances falling under Chapter 85 of the CETA, 1985. The assessee had filed the classification list classifying the products under c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e was again taken up and the Adjudicating Authority relying mainly on the two entries in the tariff decided that the Single Panel Circuit Breaker manufactured by the assessee has to be classified under CSH 8537.00 confirmed the duty demand of Rs. 22,13,129/-. 10. Aggrieved by the said order, the assessee preferred an appeal to the Commissioner (Appeals) who observed that to merit classification of the panel under CSH 8537.00, it should contain two or more apparatus of Heading No. 8535.00 or 8536.00 and in the instant case, the single panel contains only the circuit breaker falling under Chapter 85.35 and hence the subject panel is not classifiable under Chapter 85.37 and accordingly the Single Panel Circuit merits classification under Ch....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... basis of his interpretation of the above two entries and that the said order is not based on the circular dated 14-7-1994 and, therefore, the circular had no application to the facts of this case. He would further submit that under Section 37B of the Act, the Board is empowered to issue instructions to Central Excise Officers for the purpose of uniformity in the classification of eligible goods which instructions, are required to be followed by such officers. However, under proviso A to Section 37B, an exception is made. The said proviso states that the said instructions, orders or directions cannot make any Central Excise Officer to dispose off a particular case in a particular manner. Similarly, under proviso B, such instructions shall n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....th by the Commissioner (Appeals) and by the Tribunal and thus there is a concurrent finding of fact in favour of the respondent and department's appeal ought to be dismissed in view of the same. Learned counsel has also invited our attention to the counter affidavit filed on behalf of the respondent and the detailed reply made thereunder to the civil appeal filed by the Revenue. Learned counsel further submitted the circular being oppressive and against the respondent has to apply only prospectively and cannot be applied retrospectively. In other words, a beneficial circular has to be applied retrospectively while an oppressive circular has to be applied prospectively. Thus, when the circular is against the respondents they have a right to ....