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TMI Blog2005 (1) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... d, 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. The assessee paid duty by classifying the same under Tariff sub-heading 8535 of Central Excise Tariff Act, 1985. According to the Department the item was classifiable under sub-heading 8537. Accordingly, four show cause notices were issued on; 17-12-1993 for the period 30-6-1993 to 31-8-1993; show cause notice dated 4-4-1994 for the period 13-9-1993 to 30-9-1993; show cause notice dated 31-5-1994 for the period 1-11-1993 to 28-2-1994 and show cause notice dated August 1994 for the period March 1994 to August 1994. By the aforestated four show cause notices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conclusion that Minimum Oil Circuit Breakers were classifiable under sub-heading 8537.00 and not under sub-heading 8535.00. Reliance was placed on the Explanatory Note to Chapter 85 as well as HSN for coming to the conclusion that Circuit Breakers were classifiable under sub-heading 8537.00. 6.Being aggrieved by the order of the Assistant Collector, the assessee went in appeal to the Collector of Central Excise (Appeals). Before the appellate authority the assessee placed reliance on a Circular dated 14-7-1994 issued under Section 37B clarifying that the item in question would fall under Tariff sub-heading 8537.00 prospectively. It was urged by the assessee before the appellate authority that in view of the said Circular dated 14-7- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, much prior to the Board's Circular dated 14-7-1994. It was submitted that the said show cause notice was not 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. 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. 9.Despite notice none appeared for the assessee. 10.Before dealing with the above arguments, for the sake of convenience, we reproduce hereinbelow the relevant heading, sub-heading and description of the goods, along with the rate of duty under Chapter 85 which dealt with electrical machinery and equipment and parts thereof. Heading No. Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective and consequently the Department was not entitled to demand duty on the basis of reclassification for the period prior to that date. In this connection, reliance was placed on the judgment of this Court in the case of H.M. Bags Manufacturer v. Collector of Central Excise, reported in [1997 (94) E.L.T. 3]. In our view, the judgment of this Court in the case of H.M. Bags Manufacturer (supra) has no application to the facts of the present case. As can be seen from the facts enumerated hereinabove, much prior to 14-7-1994 a show cause notice was issued by the Assistant Collector on 17-12-1993 on the basis of his interpretation of the above two entries. The order passed by the Assistant Collector dated 19-12-1994 is also on the basis of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the present case. 14. The extent and scope of Section 37B came up for consideration before the Calcutta High Court in the case of Birla Jute and Industries Ltd. v. Assistant Collector of Central Excise, reported in [1992 (57) E.L.T. 674]. Ruma Pal, J. (as she then was) has succinctly analysed the provisions of Section 37B by laying down the following principles :- "(1) There is a distinction between a decision in a particular assessment by a quasi-judicial authority and a decision on principle by the Board. While an instruction issued under Section 37B cannot be binding upon a quasi-judicial authority under the Act, the departmental officers conducting the lis before such quasi-judicial authority cannot take a stand contrary to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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