COMMISSIONER OF CUSTOMS Vs. LAKSHMI MACHINE WORKS LTD.

JUDGEMENT

(1.) THIS is a Revenue appeal against the order -in -appeal passed by the Commissioner (Appeals) holding that imported item "Printed Circulated Boards" were designed to function in a particular machine. He has noted that Heading 85.34 covers Printed Circuit Boards generally. However, if they are designed for the particular machine and are populated with transistors, diodes, resistros, etc., they become spare parts of the specific machine for which they are designed. He has noted that the populated printed circuit boards would thus be identifiable as specific part number of the machine. The particular number machine in the invoice tally with the list of the spare parts of the supplier. Therefore, he held that the item is required to be classified under sub -heading 8504.90 and granted relief to the assessee. Revenue contend in the appeal that the original authority had classified the item under Heading 85.42 which also is incorrect classification inasmuch as the PCB in question is an identifiable part of the CNC system and therefore, they are required to be classified under sub -heading 8538.90. They seek for change of the classification. It is further contended that there is no change in the sub -heading for the duty already assessed and collected. Ld. DR seeks for remand of the matter so that the correct classification can be adopted in the matter.

(2.) APPEARING on behalf of the respondents ld. Consultant, Shri M.S. Kumaraswamy filed a copy of the Collectors' Conference minutes, wherein it has been held that the printed circuit boards of CNC system of Forge Press would be classifiable as part of the forge press. This view has been expressed in the light of the explanatory note under Heading 85.37 at page 1391 of the H.S.N. He further submits that the order passed by the Commissioner is legal and proper. He also submits that the Revenue has not challenged the order in original and they cannot ask for a different heading than what has been adopted by the lower authorities. In this regard he referred to the Apex Court judgment rendered in the case of Gujarat State Fertilisers Co. v. CCE reported in 1997 (91) E.L.T. 3 (S.C.), wherein the Hon'ble Apex Court held that a different headings cannot be suggested by the Tribunal which was not part of the original claim. He also referred to the judgments rendered in the case of CCE v. Senapathy Symons Insulations (P) Ltd, reported in 1999 (108) E.L.T. 666 (T), wherein it has been held that the department cannot seek a different classification than the one proposed in show cause notice and approved earlier. Therefore, he prays for dismissal of the Revenue appeal.

(3.) ON a careful consideration, we notice that the Commissioner (Appeals) has examined the issue at length in the light of the Tariff note and HSN note. He has rightly held that the item has become a part of the machine as it has got a specific part number and it has been designed to work as a part of the machine and it is identifiable as a specific part of the machine. It is also seen that the Collectors' conference has also expressed their view that the item is required to be treated as a part of the forge press. Furthermore, the Revenue is seeking a different heading from the one already adopted by the authorities, which cannot be done so at this stage as has been held by the Apex Court in the case of Gujarat State Fertilisers Co. v. CCE (supra) and in the case of CCE, Bangalore v. Senapathy Symons Insulations (P) Ltd, (supra), we do not find any merit in this appeal and hence, the Revenue appeal is rejected.