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CASE NO.: Appeal (civil)  4904-4905 of 2002

PETITIONER: M/s. Continental Profiles Ltd.

RESPONDENT: Commissioner of Central Excise,New Delhi

DATE OF JUDGMENT: 21/05/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1.      Challenge in these appeals is to the order passed by  Customs Excise and Gold (Control) Appellate Tribunal, New  Delhi (in short the ’CEGAT’).  By a common order CEGAT  dismissed the two appeals filed by the appellant.  The issue  involved in the appeals was whether "Actuators" were  classifiable under sub-heading 85.43 as claimed by the  appellant or under heading 85.01 of the schedule to the  Central Excise Tariff Act, 1985 (in short the ’Tariff Act’) as  contended by the revenue.  The demand made was confirmed  by the Commissioner (Appeals). The stand of the appellant  before the CEGAT was that in CCE v. Guindy Machines Pvt.  Ltd. [1999(113) ELT-610] and in the case of Audco India Ltd.  v. Commissioner of Customs [1999 (106) ELT \026 524] it has  held that "Actuators" are not classifiable under heading 85.01.  Commissioner (Appeal) relied on the decision in CCE, Bombay  v. Seimens (I) Ltd. [2000 (119) ELT -167] where it was held  that the "Actuators" were classifiable under Heading 85.01.   thus there were conflicting decisions in the matter.  2.      Learned counsel for the Revenue submitted that Guindy’s  case (supra) was distinguished by the Tribunal in Seimens’  case (supra) by observing that the product involved in the said  case was "Electromechanical Actuator" which was considered  as a part and accessory suitable for use solely or principally  with the machine of heading Nos. 84.56 to 84.65.  In that view  of the matter there is no necessity to refer to the matter to the  Larger Bench. The Tribunal referred to the decisions and with  reference to the factual position held that the view in Seimens’  case (supra) was applicable. Factually it was noticed that  Electric Valve Actuator falls under heading 85.01 and there is  no contrary mention in the Central Excise Tariff. The product  is to be classified under Heading 85.01 only.  With reference to  the write up on Electrical Actuator it was found that these are  required to regulate flow. The distinction with Guindy’s case  (supra) was noticed by observing that the product involved  was "Electromechanical Actuator" which was considered as  part and accessories suitable for use solely or principally with  the machines of Heading Nos.  84.56 to 84.65.  Reference was  also made to the Explanatory Notes of H.S.N. 3.      In support of the appeal, the stands taken before the  CEGAT was reiterated.  It was submitted that the HSN can be  relied on if goods are identical.  In these cases goods are not  identical. 4.      In Section XVI, Chapter 85 GEN, it is noted as follows: (A) SCOPE AND STRUCTURE OF THE CHAPTER This Chapter covers all electrical machinery and

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equipment, other than; (a) Machinery and apparatus of a kind covered by  Chapter 84, which remains classified there even if electric (see  the General Explanatory Note to that Chapter), and (b) Certain goods excluded from the Section as a whole  (see the General Explanatory Note to Section XVI). 5.      Contrary to the rules in Chapter 84, the goods of this  Chapter remain classified here, even if they are of ceramic  materials or glass, with the exception of glass envelopes  (including bulbs and tubes) of heading 70.11. 6.      This Chapter covers: (1) Machines and apparatus for the production,  transformation or storage of electricity, e.g., generators,  transformers, etc. (85.01 to 85.04) and primary cells (heading  85.06) and accumulators (heading 85.07) (2)     Certain electro-mechanical apparatus, e.g.,  electromechanical tools for working in the hand (heading 85  08), certain domestic appliances (heading 85 09), and whavers  and hair clippers (heading 85 10) (3) Certain machines and appliances which depend for  their operation on the properties or effects of electricity, such  as its electro-magnetic effects, heating properties, etc.  (headings 85.05, 8511 to 85.18, 85.25 to 85.31 and 85.43) (4) Instruments and appliances for recording or  reproducing sound; video recorders or reproducers; parts and  accessories for such instruments and appliances (heading  85.19 to 85.22). (5)     Recording media for sound or similar recording of  other phenomena (including video recording media, but  excluding photographic or cinematographic films of Chapter  37) (headings 85.23 and 85.24). (6)     Certain electrical goods not generally used  independently, but designed to play a particular role as  components, in electrical equipment, e.g. capacitors (heading  85.32, switches, fuses, junction boxes, etc. (heading 85.35 or  85.36), lamps (heading 85.39), thermionic, etc., valves and  tubes (heading 85.40),  transistors and similar semiconductor  devices (heading 85 .41), electrical carbons (heading 85.45). (7)     Certain articles and materials which are used in  electrical apparatus and equipment because of their  conducting or insulating properties, such as insulated electric  wire and assemblies thereof (heading 85.44) , insulators  (heading 85.46) , insulating fittings and metal conduit tubing  with an interior insulating lining (heading 85.47). 7.      So far as other non-electric goods falling in Heading  84.85 are concerned in Heading 85.01 it is to be noted that  the same relates to electric motors and generators excluding  generating sets the details of electric motors are indicated to  mention as follows: "Electric motors are machines for transforming electrical  energy into mechanical power."  8.     This group includes rotary motors and linear motors.  It  would be relevant to quote para 3 of the group which reads as  follows: "(3) Valve actuators, electrical, consisting of an electric  motor with reducing gear and drive shaft and in some cases,  with various devices (electric starter, transformer, hand wheel,  etc.) to operate the valve plug." 9.      In order to be covered by heading 84.43 (a) the same  must relate to electric machines and apparatus with individual  functions (b) must not be specified or included elsewhere in  the Chapter.   10.     Above being the position the view of the CEGAT does not  suffer from any infirmity to warrant interference.

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11.     Appeals are dismissed. No costs.