Customs, Excise and Gold Tribunal - Tamil Nadu
Eswaran And Sons Engineers Ltd. vs Commissioner Of C. Ex. on 26 April, 1999
Equivalent citations: 1999(112)ELT1011(TRI-CHENNAI)
ORDER V.K. Ashtana, Member (T)
1. In these four appeals, the dispute concerns classification of Minimum Oil Circuit Breaker without mounted on any panel i.e. whether it would fall under Heading 85.35 or 85.37, the latter being the contention of the Department in view of Board's circular F.No. 32/8/94 C.X., dated 14-7-1994. It is also contended by the appellants that the said circular shall not be applicable with retrospective effect in view of Supreme Court's decision in the case of H.M. Bags Manufacturers v. C.C.E. as reported in 1997 (94) E.L.T. 3 (S.C.).
2. Heard Shri V. Balasubramanian, ld. Advocate for appellants and Shri S. Sankaravadivelu, ld. DR.
3. Ld. Advocate submits that the aforesaid Board's circular is an order under Section 37B. Therefore, in view of the above cited Supreme Court judgment, it would have only prospective effect. He submits that this matter has already been decided by the Tribunal in the case of Quadromatic Engg. Pvt. Ltd. and Ors. v. C.C.E., Pune by Final Order Nos. E/945 to 947/98-B1, dated 17-7-1998 wherein the majority decision holds that Board's circular under Section STB of the Act will have only prospective effect. Ld. Advocate further submits that since the matter is already a covered one, therefore he does not press their claim for classification under 85.35. Instead since the period for which the demand has been confirmed is now to be restricted to a very small period from the date of the said Board's order i.e. 14-7-1994, therefore the pre-deposit of Rs. 4 lakhs already deposited by them needs to be looked into by the original authority on remand as according to ld. Advocate an amount of approx. Rs. 22,963 /- only needs to be paid to the Department and the rest refunded to them.
4. Heard ld. DR who submits that the said Board's circular is only clarificatory nature as it only clarifies and the said circular is not issued as a result of any change in the Tariff but merely interprets an existing tariff. Therefore it should have retrospective effect.
5. We have carefully considered the rival submissions and the records of the case. With respect to the classification of Bulk Oil Circuit Breakers, we find that the Tribunal has already held in the case of C.G.L. v. C.C.E. as reported in 1996 (87) E.L.T. 414 (Tribunal) that the same would be classified under 85.37. We also note that ld. Advocate does not press for any other classification. Since the matter has already been decided, we apply the ratio thereof and hold that the goods would be classified under Chapter Heading 85.37 of the C.E.T.
6. As far as the question of applicability of the aforesaid Board's circular under Section 37B, we are clearly of the considered opinion that in view of the above noted decision of the Tribunal in the case of Quadromatic Engg. Pvt. Ltd. and Ors. v. C.C.E. supra the said circular shall be operative only with prospective effect. In this connection, we find that whereas the circular is dated 14-7-1994, the demand confirmed and upheld by Order-in-Appeal No. 107/95, dated 31-5-1995 is for the period from 30-6-1993 to 31-8-1994 and involves an amount of Rs. 9,69,638/-. We note that out of this amount, the appellant has already pre-deposited Rs. 4 lakhs. Since we have already held that the Board's circular would be operative only from 14-7-1994, therefore, the quantum of duty leviable needs to be recalculated. This can only be done by the original authority who has all the relevant assessment documents on record. Therefore, we set aside the Order-in-Appeal impugned as well as attendant Order-in-Original to the extent that duty demand is concerned and remand the matter for de novo consideration by the original authority. He is directed to apply the said Board's circular dated 14-7-1994 with prospective effect and to recompute the actual duty payable. The balance of duty already pre-deposited would then have to be refunded to the appellants. Since the matter is fairly old and appellants have already deposited large sums as pre-deposit, therefore the prayer of ld. Advocate that learned original authority may be directed to do this within a specified time is accepted and ld. Asstt. Commissioner concerned is directed to finalise the matter on de novo basis as per above directions within 4 months from the date of this order. Ordered accordingly. Appeal succeeds partially in the above terms.