TaxTMI 
TaxTMI 
2005 (7) TMI 163
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....fication 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 apparatus of heading no. ....
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.... 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 Sept. 93 21,78,003.00 3. C.EX/RV/L&T/PLW/SCND/94 dated 17-1-94 Oct. 93 to Dec. 93 54,51,741.00 4. C.EX/RV/L&T/....
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....t 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. Spares for Electrical Measuring Instruments 9033.00 And thereafter findings are arrived at as follows : - "Viewed from the above facts, particularly keeping in mind inputs such, as Panel Boards, Panel, Control Panel, S.S. Boards and Panels, Switches, Switch Fuses, Fuse Link and read with para above, the item in question is not Static Converter, but a panel for control of electricity falling under chapter sub-heading no. 8537.00 attracting Central Excise duty @ 18%. Moreover, the literature furnished by M/s. Larsen & Toubro Ltd., under the above said letter is indicative of that fact that, what is being manufactured and cleared is not Static Converter but a converter system for in....
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....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 may vary from a few switch panel to complex Control panels for machine tool, mills, Radio station etc. This Tribunal in the case of Cincinate Milacron Ltd. - 2002 (144) E.L.T. 542, had held that Heading 85.37 would cover apparatus for control & distribution of electricity & entities that do not perform, such a function would fall outside the purview of 85.37. We cannot upheld the classification under heading 85.37 only based on HSN notes, without giving into the test as prescribed by the Tribunal. (d) The Commissioner's findings, not only factually inaccurate also they do not consider the decision of the Tribunal cited at the hearings. Th....