Delhi High Court
American Power Conversion (I) ... vs Union Of India (Uoi) on 10 February, 1998
Equivalent citations: 1998 (103) ELT 6 Del
Bench: H Lahoti, D Bhandari
ORDER
1. C.W.P. No. 607/98: It is pointed out the matter is identical with CWs 3924-3925/96 and 1103/97 copy of the order dated 19-8-1997 passed therein is available at page 32 of the paper book.
2. It is conceded at the bar that the issue arising for decision in this petition is also pending before the Supreme Court in an appeal filed against the judgment of the CEGAT in J.K. Synthetics Ltd. v. Collector of Customs, Jaipur, (page 22 of the paper book). The hearing of this petition is adjourned sine die awaiting the decision of the Supreme Court. Either party would be at liberty to mention this matter for hearing as soon as the decision of the Supreme Court has been rendered.
3. CM. No. 1029/98 : The learned counsel for the petitioner requests for interim relief being allowed to the petitioner submitting that the question of survival of the petitioners is involved.
4. The question arising for decision in the present petition is under which of the heading Uninterrupted Power Supply System (UPS) is to be classified. As per circular dated 10-10-1990 issued by the Central Board of Excise and Customs (CBEC), UPS was being classified under Heading 85.04 of the Central Excise Tariff. This Circular held the field and governed the classification until 4-7-1995 the date on which came the decision of the CEGAT in J.K. Synthetics case (supra) (page 39 of the paper book).
5. On 24th April, 1996 the CBEC issued the impugned Circular Annexure 2 expressing an opinion that in view of the judgment of the CEGAT which would be binding on the Department unless reversed by the Supreme Court or the CEGAT itself, the UPSS will be classifiable under the Heading 8543.80.
6. The learned Counsel for the petitioner has brought 3 very relevant factors to the notice of the Court. Firstly, it is submitted that the decision of the CEGAT in J.K. Synthetic case (supra) is subject matter of an appeal before the Supreme Court, the decision wherein is awaited, though there was no scope for stay inasmuch as the excise duty was already paid. Secondly, it is submitted that the decision of the CEGAT in J.K. Synthetic case (supra) is also awaiting reconsideration by a Full Bench of the CEGAT in terms of the order dated 4-3-1997 passed in the case of Mangalore Chemicals & Fertilizers Co. Ltd. v. Collector of Customs - 55 of the paper book). Thirdly, it is pointed out that World Customs Organisation has issued a Compendium of Classification Opinions in January, 1996 wherein it has still opined for the UPSS being classified under the Heading 85.04 (pages 53-54 of the paper book).
7. In view of the above said facts, the factual position being not in dispute, it is directed that until further orders the petitioner shall pay the excise duty by treating UPSS classified under the Heading 85.04. However, within a period of two weeks from today, the petitioner through its constituted attorney and authorised representative appointed under a resolution of Board of Directors file an undertaking to the effect that the petitioner shall comply with the final decision in this petition. The petitioner shall also undertake that it will follow the decision of the Supreme Court or CEGAT whichever is earlier forming an opinion in the matter of classification of UPSS and if the opinion be adverse to the petitioner rendering it additionally liable to payment of duty then that shall be paid within four weeks from the date of such decision.
