Customs, Excise and Gold Tribunal - Delhi
Collector Of Central Excise vs Flexpro Electricals on 20 November, 1992
Equivalent citations: 1993(41)ECC310, 1993(64)ELT277(TRI-DEL)
ORDER G.A. Brahma Deva, Member (J)
1. Appeal No. 2769/90 if filed by the Department against the Order-in-appeal No. GSM-201/90/Banxk dated 4-4-11990 passed by the Collector (Appeals), Bombay and similarly aggrieved by the Ordcr-in-appeal No. 579/90 dated 19-12-1990 passed by the Collector (Appeals), Ahmedabad, party also filed the appeal bearing No. E/222/91. Since the issue involved is common in these two cases, they are clubbed together and are being disposed of by this common order.
2. The issue involved in these two cases is whether 'Flame Proof/Ex plosion Proof enclosures' manufactured by the party is classifiable under Chapter Heading 8536.90 as per the Department or under Chapter Heading 8543.00 or alternatively under Heading 8537.00 as claimed by the party.
3. Relevant Tariff Headings 85.36, 85.37 and 85.43 are reproduced as under :-
"85.36 Electrical apparatus for switching or protecting electrical circuits, or, for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lampholders, junction boxes), for a voltage not exceeding 1000 volts.
8536.10 Overload protection or thermal relays,
starting relay controls, for refrigerating
and air-conditioning appliances and machinery.
8536.90 Others."
"85.37 8537.00 Boards, panels, (including numerical
control panels), consoles, desks,
cabinets and other bases, equipped with
two or more apparatus of Heading No. 85.35
or Heading No. 85.36, for electric control
or the distribution of electricity,
including those incorporating instruments
or apparatus of Chapter 90, other than
switching apparatus of Heading No. 85.17."
"85.43 8543.00 Electrical machines and apparatus,
having individual functions, not
specified or included elsewhere in this
Chapter."
4. In appeal No. 2769/90, the Collector (Appeals), Bombay held that the items in question are not classifiable under Heading 85.36 but classifiable under Heading 8543.00 on the ground that functions of the items are not for switching or protecting electrical circuit or making connections to or in electrical circuits. On the other hand, the Collector (Appeals), Ahmedabad has taken the view that the basic function and characteristics of these switches, relays etc. do not get altered by fitting them in the enclosures and, accordingly, they are classifiable under sub-heading 8536.90.
5. We have heard Shri S.K. Sharma, learned D.R. for the Department and party was duly represented by Shri Willingdon, learned Advocate in both the appeals.
6. While justifying the stand of the Department, Shri Sharma submitted that the products in question are essentially an assembly of different types of electrical fittings used for controlling flow of electricity and therefore, are correctly classifiable under sub-heading 8536.90 and not 8543.00.
7. Shri Willingdon arguing for the Assessee submitted that the party purchases duty paid switches, relays, fuses etc. which are already classified under Heading 85.36 and used in the manufacture of flame-proof enclosures. When such assembly is completed, the individual components lose their individual identity and the resultant assembly emerged as a result of such assembly of component parts behaves as an individual unit and as a separate unit and not as switches, relays etc. Sometimes the mere covering cases were also cleared without assembly of such components. He also drew our attention to the I.S.I. Specification IS : 2148-1981 in which flame-proof explosion is described as "An enclosure for electrical machinery or apparatus that will withstand, when the covers or other access doors are properly secured, an internal explosion of the flammable gas or vapour which may enter or which may originate inside the enclosure, without suffering damage and without communicating the internal flammation (or explosion) to the external flammable gas or vapour in which it is designed to be used, through any joints or other structural openings in the enclosure." It was submitted on behalf of the party that flame-proof/explosion-proof enclosures manufactured by them are used for housing different types of lamps for use in areas where inflammable or explosive gases or explosive powder are likely to be present.
8. We have also taken note of function of the apparatus in question as it was stated in I.S.I. Specification that the essential principle of electrical apparatus with flame-proof enclosure is that the hazardous atmosphere is not excluded from entry into the enclosure and it is recognized that an explosion may likely occur within the apparatus, but the construction of the enclosure should be such as it shall withstand the internal explosion without any evidence of distress and shall prevent the communication of the internal ignition to the surrounding explosive atmosphere.
9. On hearing both sides and on going through the technical write-up with reference to the item in question and on seeing items, we concur with the view taken by the Collector (Appeals), Bombay as per impugned order in Appeal No. E/2769/90 that the functions of these items are not for switching or protecting electrical circuit or for making connections to or in electrical circuits. Accordingly, these items are not classifiable under the Heading 85.36. When once it is ruled out under Heading 85.36, next question arises whether the item in question is classifiable under Heading 85.37 or under 85.43. On going through the tariff entries and having regard to the nature and function of the items in question, as discussed above, we are of the view that it is more appropriately classifiable under 85.43 since individual function of the item in question is not specified and Entry 85.43 refers to an electrical apparatus having individual functions not specified or included elsewhere. Accordingly, we hold that these items are correctly classifiable under 85.43..
10. Thus, both these appeals are disposed of in the above terms.