JUDGMENT
S.L. Peeran
1. Both the appeals are taken up together as the issue is common. The Commissioner (Appeals) in both the orders upheld the re-classification of Uninterrupted power Supply System (UPSS) manufactured by the assessee under Chapter Sub Heading 8543.90 of Central Excise Tariff and confirmed the differential duty for the respective periods.
2. The assessee’s contention was that the item is covered under Chapter Heading 8504 as Static Converters which was not accepted. The Commissioner (Appeals) also did not hear the assessee but decided the case on merits in terms of the submission made by them. He has confirmed the re-classification based on the catelogue cleared by the appellants and on the basis of the advertisements made by the assessee. Their prayer for referring the matter to expert opinion was also not considered. The assessee seeks for classification of the product under heading 8504 as Static Converters.
3. When the matter came up for hearing, Ld. Advocate Shri S. Raghu submitted that the issue was referred to the Larger Bench of 5-Members presided over by Hon’ble President. The Larger Bench in the case of LUMINUOUS ELECTRONICS PVT. LTD. v. CCE NEW DELHI [2001 (43) RLT 543 (CEGAT-L.B.)] after detailed consideration, upheld the assessee’s contention for classifying Uninterrupted Power Supply System (UPSS) under heading 8504 in view of its principal function is of a static converter and over-ruled the department’s contention for classification under 8543 as UPSS. The Commissioner had relief on the judgment of the Tribunal rendered in the case of Mangalore Chemicals & Fertilizers Ltd. v. CCE Bombay [1997 (93) ELT 548-Trib.] which has been over-ruled by the Larger Bench in the cited case.
4. Heard Ld. SDR who fairly concedes that the Larger Bench has upheld the assessee’s contention.
5. On a careful consideration and perusal of the Larger Bench judgment noted supra, we notice that the Tribunal after due consideration has upheld the assessee’s contention for classification of the item under Heading 8504 on account of its principal function being of a static converter and over-ruled the classification adopted by Revenue under 8543 and thus all the bench decisions were over-ruled and the classification as claimed by the assessee has been upheld. In view of the Larger Bench judgment, following respectfully the same, the impugned orders are set aside and both the appeals are allowed.
(Dictated and pronounced in open Court)