ORDER
Ms. Jyoti Balasundaram, Member (J)
1. The respondent herein are engaged in the manufacture of Thermowells, Instrument Cables, Control Cables and Process Control Equipment, etc., falling under Chapter 85 and 90 of the Schedule to the Central Excise Tariff Act, 1985. Show cause notice dated 05/08/1993 was issued to them proposing recovery of duty on three grounds:
(i) That they had cleared certain goods i.e., Thermowells without payment of duty of Rs. 9,706/-;
(ii) Compensating Cables/Thermo Couple Cables had been wrongly classified by them under the CETA heading 90.32 as the same were correctly classifiable under heading 85.44 resulting in short levy of Rs. 6,94,753/-; and
(iii) That the appellant had undervalued their goods involving duty demand of Rs. 1,56,491/-.
2. The notice was adjudicated by the Commissioner of Central Excise who dropped all the charges raised in the notice. The Revenue has filed the present appeal against the order of the Commissioner dropping the demand.
3. At the outset the learned counsel for the respondent states that the demand of Rs. 9,706/- has already been paid by the respondent and he is not contesting the submission of the Revenue that the goods involved on this count was actually manufactured by the respondent and he is giving up the claim that the tempo in which the goods was seized contained goods traded by the. Therefore we are left to decide two issues, namely correct classification and the correct valuation.
4. We have heard Shri J.M. George, the learned DR and the learned counsel on these two issues. We find that classification claimed by the Revenue of Compensating Cables under Chapter 85 on the basis of the decision of the Tribunal in the case of Toshniwal Cables reported in 1994(72) ELT 461 is not longer tenable view of the decision of the larger bench in the case of CCE Vs. Fykays Engineering Pvt. Ltd. 2000 (116) ELT 341. The larger bench has overruled the decision in the case of Toshniwal Cables and has held that Compensating Cables/Thermo Cables/Couples fall for classification under heading 90.25.
5. Following the ratio of the larger bench decision cited supra we hold that the claim of the Revenue for classification of these goods under Chapter 85 is not correct.
6. Coming to the charge of undervaluation we not that the assessee/respondent had cite several decisions before the learned Commissioner to show that they and Sensotherm India Pvt. Ltd. were not related persons. They had also further argued that the demand on this ground is barred by limitation. The Revenue’s appeal does not cite any other case law or contest the applicability of the ratio of the decisions cited before the Commissioner but only repeat the allegations made in the show cause notice regarding commonality of staff. Further, the appeal before us doe snot contest the finding of the Commissioner that the demand on the ground of undervaluation is barred by limitation. Therefore both on merits as well as on limitation the charge of undervaluation is not sustainable and we accept the finding of the Commissioner on this scope.
7. In the result we uphold the impugned order and rejected the appeal.