TMI Blog2001 (5) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... would be entitled to Modvat for having used duty paid inputs in the manufacture of excisable goods classified by him under Heading 85.38 (Voltage Stabilizer Parts) under Heading 8529 (TV receiver parts cleared without declaration, during the period 1-4-1994 to 31-3-1995, even after crossing the exemption limit of Notification No. 1/93), dated 28-2-1993, by wilfully suppressing the facts with intention to evade duty on the grounds given in Show Cause Notice dated 18-2-1997. A penalty of Rs. 1 lakh on A1 and Rs. 50,000/- each on A2 A3 was also imposed along with demand of interest under Section 11AB on duty determined by him. 2. After hearing both sides and considering the submissions, we find - (a) The admitted portion is that the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zer would at best be an accessory helping the function of a voltage stabilizer to a subordinate degree and cannot be treated as part of the stabilizer itself. Before dealing with whether or not this is classifiable under 3533.00, it would be relevant to first see whether the product in question is classifiable under Heading 39.23 of the tariff which reads as under :— "39.23 Article for the conveyance or packing of goods, plastics; stoppers, lids; caps and other closures, of plastics." reference to the Explanatory Notes appearing under Heading No. 39.23 would reveal that this heading covers all Articles of plastics commonly used for the packing or conveyance of all kinds of products and includes items specified under clauses (a), (b) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt opinion is on record, in the appeal, or before the lower authority to substantiate this plea advanced. Similarly, the adjudicator, has seen the samples at the hearing, considered that undisputedly a special shape has been given, and thereafter considering the plea advanced of it being an "accessory" and a cover not functioning in stabilizing voltage, he found it to be a "part" and relying on H.S.N notes under Heading 39.23 rules out its classification there-under. The adjudicator has also not relied on any expert opinion or other material to come to his findings. His findings are based on his opinion, which cannot be the basis to arrive at a classification or and function of the entity under dispute. The adjudicator should have recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ton, etc can be wound up, with plates at top and bottom to prevent it from slipping" Therefore we find, in Technology, a spool is understood as support for a coil. There is no restriction found by us to limit the exclusions by notes to Section XV of 'spools' used, only in yarn winding/unwinding, as arrived at by the learned adjudicator. We would, therefore, consider that the 'spools' made of plastic on which wire is coiled, and thereafter used as part of Transformer would be excluded from Section XVI, and thus Chapter 85. Thus they cannot be classified under 85.30 as arrived at in the impugned order. We would consider them to be more appropriately classified under heading 39.23 as claimed to be correct, as per section notes read with rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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