Customs, Excise and Gold Tribunal - Bangalore
Spa Computers Ltd. vs Commissioner Of Central Excise on 17 December, 2004
Equivalent citations: 2005(180)ELT497(TRI-BANG)
ORDER T.K. Jayaraman, Member (T)
1. This is an appeal against the Order-in-Appeal No. 1047/99-C.E. dated 27-9-99 passed by the Commissioner of Customs & Central Excise (Appeals), Bangalore.
2. The issue involved in this case is correct classification of programmable logic controllers manufactured by the appellants. The Assistant Commissioner of Central Excise, Bangalore-V Division in her Order-in-Original dated 26-9-97 classified the item under Chapter sub-heading 8537 and demanded differential duty of Rs. 2,18,027/- with effect from 1-4-96 to September 1996. In fact, the Assistant Commissioner issued this order consequent to the appellant filing a classification declaration No. 1/96-97 with effect from 1-4-1996 claiming classification of the item under Chapter 90. Earlier there was a practice of classifying the item under Chapter 90 based on the Order-in-Appeal No. 275/91, dated 4-11-1991. The appellants agitated against the decision of the Assistant Commissioner on the ground that the Commissioner (Appeals)'s Order, dated 4-11-1991/10-11-1991 was not appealed against and has become final. Hence the Assistant Commissioner cannot revise the declaration as no new facts have arisen warranting change of classification from Chapter 90 to Chapter 85. The Commissioner (Appeals) in the impugned order rejected the appellants contention and has held that the classification can be revised prospectively in the light of new facts. It has also been stated that the Board has issued Circular under Section 37B on 6-8-96 regarding the classification of the item.
3. Shri S. R. Madhava Murthy, learned Consultant appeared on behalf of the appellants and Shri L. Narasimha Murthy, learned SDR appeared on behalf of the Revenue.
4. We have heard both the sides in the matter. The appellants maintained that the equipment, SPA Micro programmable logic controller manufactured by them would merit classification under Heading 9032. The Board has issued under Section 37B order dated 9-5-97 superseding of their earlier order dated 6-8-96 making a clear distinction between programmable logic controller and programmable process controller. As per the Circular, programmable logic controller would be classified under Heading 8537 and programmable process controller under Heading 9032 of the Central Excise Tariff Act, 1985. Under these circumstances, the appellant's contention that the programmable logic controller manufactured by them will fall under Chapter 90 is not acceptable. The goods are rightly classifiable under Heading 8537 and the Order-in-Appeal is legal and proper. There is no bar for re-opening the issue and to decide the same when fresh facts come to light subsequently. Hence the appeal is dismissed.