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TMI Blog2010 (12) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) viz: order-in-appeal No. 457/2004 dated 29/10/2004 holding the same product to be classifiable under Heading 84.71 and setting aside order-in-original No. 38/2004 dated 14/06/2004 of the Assistant Commissioner who had approved classification of the goods viz: "Programmable Logic Controller" under Heading 85.37 of the CETA Schedule thereby modifying classification list No. 121/89 dated 28/02/1989 filed by the assessee. 3. There is a chequered history behind order-in-original No. 38/2004 dated 14/06/2004 ibid. In the above classification list, the assessee had claimed classification of their product under Heading 84.71, which was approved by the Assistant Collector. The Assistant Collector's order was reviewed and an appeal filed by the Revenue before the Collector of Central Excise (Appeals). The appellate authority accepted the Revenue's contention and classified the goods under Heading 85.37 vide Order-in-Appeal No. 89/1993 dated 02/06/1993. The appellate Collector's order was challenged by the assessee in Writ Petition No. 2609/1993 before the Hon'ble Bombay High Court on the ground that the above order-in-appeal was passed without giving an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) vide order-in-appeal dated 31/01/2002, wherein the Assistant Commissioner was directed to determine the classification in terms of the earlier remand order (order-in-appeal No. 196/97 dated 29/08/1997) and also the order passed by the Board under Section 37B. It was in pursuance of this new remand order of the Commissioner (Appeals) that the Assistant Commissioner passed order-in-original No. 38/2004 ibid. 4. Appeal No. E/289/05 involves the principal issue relating to classification of the product. In this appeal, the Revenue relies on the Board's order dated 09/05/1997 issued under Section 37B of the Central Excise Act, which classified PLC under heading 85.37. The appellant submits that the Board's order is binding on the lower authorities. In this connection, the appellant relies on the Supreme Court's judgment in Ranadey Micronutrients vs. Collector of Central Excise 1996 (87) ELT 19 (SC). The appellant further submits that the expert's opinion relied on by the lower appellate authority is not in conformity with the Board's order and hence not liable to be relied upon. It is submitted that the product in question is known in the market as 'Programm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board's order dated 09/05/1997. This case of the Revenue was accepted by the apex court in N.I. System's case. 5. The JDR also produced literature on PLC downloaded from Wikipedia, which says that a PLC is a digital computer used for automation of industrial processes, such as control of machinery on factory assembly lines and that, unlike general purpose computers, PLC is designed for multiple input and output arrangements, extended temperature ranges, immunity to electrical noise, and resistance to vibration and impact. A copy of "Siemens" brochure on COROS 2000 (Multi-Terminal System for Demanding Operator Process Communication and Process Visualization Tasks) was also produced by the JDR, who, however, could not establish a convincing relation between the literature and the goods under classification. He could only submit that, as per the literature, COROS 2000 was designed to be used in conjunction with certain programmable control systems. He finally prayed that the Revenue's appeals be allowed. 6. The learned counsel argued for the respondent in defence of the appellate Commissioner's orders and submitted that the original authority had gone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 remanded the issue to the original authority. The operative part of the order-in-appeal dated 29/08/1997 reads as follows: "3. I have carefully considered the submissions made by the appellants. I find that as per the Board's clarification vide Section 37B order which is binding on the Assistant Commissioner clear distinction has been brought out between the programmable logic controller and programmable process controller and from the findings given by the Asstt. Commissioner it does appear that the appellants' product is somewhat similar to the programmable process control which has been held by the Board to be classifiable under chapter heading 90.32. Since this chapter heading was never canvassed before the Asstt. Commissioner, I remand the matter back to him to consider the alternative classification of the appellants' product under chapter heading 90.32 after taking into account the order issued by the Central Board of Excise & Customs under Section 37B as referred to by the appellants." Neither the department nor the assessee chose to challenge the above order of the Commissioner (Appeals). However, litigation continued, and, ultimately, the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading 85.37 had already been ruled out in order-in-appeal dated 31/01/2002 and consequently he confind himself to the question of classifying the goods under Heading 84.71 or Heading 90.32. Obviously, the impugned order is liable to be set aside for this reason. 9. The real issue to be considered is whether the product in question is classifiable under Heading 85.37 as claimed by the Revenue or under Heading 84.71 / 90.32 as claimed by the assessee. The lower appellate authority will have to address this issue keeping in view the Board's order dated 09/05/1997 and other relevant materials such as the manufacturer's brochure / literature on the product, trade parlance, etc. We are of the considered view that the Hon'ble Supreme Court's recent judgment in N.I. Systems case (supra), wherein their Lordships elaborately examined the features / attributes of various equipments, including programmable process controllers and programmable logic controllers and classified the goods in question under CTH 9032 90 00, after taking into account the relevant tariff schedule provisions and HSN Explanatory Notes, would be of considerable aid to the lower appellate authority in tak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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