TMI Blog2005 (1) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... nstructions, shall not bind the discretion of Commissioner of Central Excise (Appeals), discharging appellate functions. In view of the proviso to Section 37B, the said Circular dated 14-7-1994 issued by the Board was not applicable to the facts of the present case. As stated above, in the present case, the Assistant Collector had taken a prima facie view for purposes of reclassification as far back as 17-12-1993. Therefore, the Circular dated 14-7-1994 had no application to the facts of the present case. The judgment of the Supreme Court in the case of H.M. Bags Manufacturer ( 1997 (7) TMI 119 - SUPREME COURT OF INDIA ) did not deal with the case where the department had issued show cause notice purporting to reclassify the product prior t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial duty of Rs. 9,69,638/- covering a period from 30-6-1993 to 31-8-1994. By the said four show cause notices, the Department proposed to revise the classification from sub-heading 8535 to sub-heading 8537. 3.By reply dated 4-2-1994 the assessee submitted that they were manufacturers of electrical goods falling under Chapter 85. They were manufacturing Switchgear Products coming under sub-headings 8535.00, 8536.90, 8537.00 and 8538.00. 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 1000 V. The assessee contended that the demand for duty was not mainta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ospective effect and to that extent alone demand should be made from the assessee. On merits, the assessee contended that there were two types of Minimum Oil Circuit Breakers, namely indoor and outdoor, which consists of electrical components such as fuse, terminals, socker outlet etc. The assessee, therefore, contended that the product came under sub-heading 8535.00. By Order dated 31-5-1995 the appeal was dismissed. 7.Being aggrieved by the aforestated two orders, the assessee preferred appeal to the Tribunal. By the impugned judgment, the Tribunal held that Minimum Oil Circuit Breaker was classifiable under sub-heading 8537 and not under sub-heading 8535. However, by the impugned judgment, the Tribunal held that in view of the Circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods Rate of duty (1) (2) (3) (4) 85.35 8535.00 Electrical apparatus for switching or protecting electrical circuits, or for making connections 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. 20% 85.37 8537.00 Boards, panels (including numerical control panels), consoles, desks, cabinets and other bases, equipped with two or more apparatus of heading No. 85.35 or 85.36, for electric control or the 20% distribution of electricity, including those incorporating instruments or apparatus of Chapter 90, other than swit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 19-12-1994 is also on the basis of his interpretation of the above two entries. The said order is not based on the Circular dated 14-7-1994. Therefore, the Circular had no application to the facts of this case. 13. Under Section 37B of the Act, the Board is empowered to issue instructions to Central Excise Officers, for the purpose of uniformity in the classification of excisable goods, which instructions, are required to be followed by such officers. However, under proviso (a) to Section 37B an exception is made. The said proviso states that the said Instructions, orders or directions cannot make any Central Excise Officer to dispose of a particular case in a particular manner. Similarly, under proviso (b) such Instructions, shall not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority cannot take a stand contrary to the directive/instruction issued. (2) The instructions which may be binding on the Central Excise Officers are not binding on the Assessee who may question the correctness of the same before a quasi-judicial authority and before a Court. Both the quasi-judicial authority and afortiori, the Court, can question the correctness of the instructions. (3) An assessee has on the other hand the right to claim and the court may compel compliance with such instructions as are for the benefit of the assessee by the Central Excise Officers." 15. Applying the tests enunciated hereinabove, to the facts and circumstances of this case, we hold that Circular dated 14-7-1994 had no application. 16. For the reas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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