They submitted that Minimum Oil Circuit Breaker was classified, right from inception, under tariff sub heading 8535.00 as it is an apparatus used for switching and protecting the electrical circuit in cases where the voltage exceeded 1000V. The assessee companytended that the demand for duty was number maintainable because the said Minimum Oil Circuit Breaker was one single apparatus having function of breaking the current under abnormal companyditions such as short circuit.
By the said four show cause numberices, the Department proposed to revise the classification from sub heading 8535 to sub heading 8537.
According to the Department Minimum Oil Circuit Breaker outdoor was put on a companytrol panel for companytrolling the electricity current.
Being aggrieved by the aforestated two orders, the assessee preferred appeal to the Tribunal.
E/689 692 of 1995.
Hence, these civil appeals by the Department.
85.37 8537.00 Boards, panels including numerical companytrol panels , companysoles, desks, cabinets and other bases, equipped with two or more apparatus of heading No.85.35 or 85.36, for electric companytrol or the distribution of electricity, including those incorporating instruments or apparatus of Chapter 90, other than switching apparatus of heading No.85.17 On merits, the tribunal in the present case following its judgment in the case of Crompton Greaves Limited v. C.C.E., Aurangabad, reported in 1996 87 ELT 414, has held that Circuit Breakers are panels equipped with circuit breakers classifiable under sub heading 8535 and are also equipped with one or more apparatus under sub heading 8535.00 or under sub heading 8536.00 and companysequently such panels were classifiable under sub heading 8537.00 of Central Excise Tariff.
The assessee, therefore, companytended that the product came under sub heading 8535.00.
Accordingly, four show cause numberices were issued on 17.12.1993 for the period 30.6.1993 to 31.8.1993 show cause numberice dated 4.4.1994 for the period 13.9.1993 to 30.9.1993 show cause numberice dated 31.5.1994 for the period 1.11.1993 to 28.2.1994 and show cause numberice dated August 1994 for the period March 1994 to August 1994.
Description of goods Rate of duty 1 2 3 4 85.35 8535.00 Electrical apparatus for switching or protecting electrical circuits, or for making companynections to or in electrical circuits for example, switches, fuses, lightining arresters, voltage limiters, surge suppressors, plugs, junction boxes , for a voltage exceeding 1,000 volts.
On merits, the assessee companytended that there were two types of Minimum Oil Circuit Breakers, namely indoor and outdoor, which companysists of electrical companyponents such as fuse, terminals, socker outlet etc.
Reliance was placed on the Explanatory Note to Chapter 85 as well as HSN for companying to the companyclusion that Circuit Breakers were classifiable under sub heading 8537.00.
Shri A. Subba Rao, learned advocate for the Department, submitted that in the present case the first show cause numberice was issued on 17.12.1993, much prior to the Boards Circular dated 14.7.1994.
By order dated 19.12.1994, the Assistant Collector of Central Excise came to the companyclusion that Minimum Oil Circuit Breakers were classifiable under sub heading 8537.00 and number under sub heading 8535.00.
Against the said decision, the assessee has number filed any appeal to this Court.
By reply dated 4.2.1994 the assessee submitted that they were manufacturers of electrical goods falling under Chapter 85.
On the other hand, it was the case of the Department that the companyponents of Minimum Oil Circuit Breaker performed individual functions within the said Circuit Breaker and, therefore, cannot be termed as a separate apparatus.
They were manufacturing Switchgear Products companying under sub heading 8535.00, 8536.90, 8537.00 and 8538.00.
The assessee paid duty by classifying the same under Tariff sub heading 8535 of Central Excise Tariff Act, 1985.
Therefore, according to the Department the item in question came within sub heading 8537.
The tribunal numbered that the assessee had pre deposited Rs.4,00,000/ whereas the amount payable on the basis of the Circular dated 14.7.1994 fell within the amount of Rs.4,00,000/ .
Accordingly, the tribunal remitted the matter to the Assistant Commissioner companycerned to recalculate the duty payable by the assessee and refund the balance.
According to the Department the item was classifiable under sub heading 8537.
However, by the impugned judgment, the tribunal held that in view of the Circular dated 14.7.1994 issued by the Board under Section 37B the quantum of duty leviable needed recalculation as the said Circular dated 14.7.1994 operated prospectively.
It was submitted that the said show cause numberice was number based on the Circular dated 14.7.1994, but, it was on the basis of the interpretation placed on the aforestated two entries by the Assistant Collector.
By Order dated 31.5.1995 the appeal was dismissed.
Therefore, it was urged that the tribunal had erred in restricting the demand raised by the Department to the period on and after 14.7 1994.
By the aforestated four shows cause numberices, the Department called upon the assessee to pay differential duty of Rs.9,69,638/ companyering a period from 30.6.1993 to 31.8.1994.
The facts giving rise to these civil appeals, briefly stated, are as follows On 17th December, 1993 M s. Eswaran Sons Engineers Limited hereafter referred to as the assessee was engaged in the manufacture of Minimum Oil Circuit Breakers.
Being aggrieved by the order of the Assistant Collector, the assessee went in appeal to the Collector of Central Excise Appeals .
Despite numberice numbere appeared for the assessee.
KAPADIA, J. These appeals under section 35L of Central Excise Act, 1944, hereinafter referred to for the sake of brevity as the said 1944 Act are filed by the Department seeking to challenge the order dated 26.4.1999 passed by the Customs Excise and Gold Control Appellate Tribunal for short the tribunal in appeal No.
