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2014 (2) TMI 111 - CESTAT MUMBAIClassification of goods - Programmable Logic Controllers/Programmable Process Controllers and Automatic Data Processing Machines - Classification under Heading 85.37 or Heading 84.71 / 90.32 - Held that:- barring the product literature, the other documents cannot be admitted as evidence at this stage. This is the second round of litigation and in the first round, the issue was considered by the adjudicating authority, first appellate authority and this tribunal which was the second stage appellate authority. These documents were not produced before any of these authorities in the first round of litigation. In the second round of litigation also the same route/hierarchy has been followed and the appellant chose not to produce these documents before all the authorities. Neither any explanation nor any sufficient cause is forthcoming as to why the appellant could not produce any of these documents before the authorities. The Revenue also had no occasion to consider any of these documents. In these circumstances, we reject the request of the appellant to take the additional evidences on record except the product literature. As regards the product literature, the same formed part of the technical/expert opinion adduced by the appellant before the lower authorities and therefore, it is not a new evidence. To qualify as 'programmable process controller', Continuous monitoring of the various parameters such as pressure, flow and temperature level etc. has to be done and comparison should be made of the parameters of the desired value with the actual value and the machine should be capable of bringing the variables to the desired value. None of the machines in the present case undertake these functions nor do they have a measuring device to measure any of these parameters. As per the HSN Explanatory Notes, to fall under heading 9032, the equipment should consist of a measuring device (sensing device, resistance probe, thermocouple, etc.) which determines the actual value of the variable to be controlled and converts it into a proportional electrical signal, an electrical control device which compares the measured value with the desired value and a starting or stopping or operating device (contacts, switches or circuit breakers, relay switches). From the technical literature, it is seen that the impugned goods do not satisfy the criteria laid down. The Programmable logic controllers manufactured by the appellant do not fall under CETH heading 90.32 as programmable process controllers nor do they fall under CETH 84.71 as automatic data processing machines; - All the seven products under consideration, Simatic S5 110A/s, Simatic S-5 135/150U, Simatic AS-5 100U, Teleperm ME, Sinaut 8F, Sicomp M and Coros 2000 merit classification under CETH 85.37 as "programmable logic controllers." - Decided against assessee.
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