ORDER
Lajja Ram, Member (T)
1. M/s. P.C. Metal Industries, Shastri Nagar, Delhi had filed an appeal being aggrieved with the order in appeal dated 24-3-1994 passed by the Collector of Central Excise (Appeals), New Delhi. Subsequently they also filed an application under Section 35F of the Central Excises and Salt Act, 1944 for dispensing with the condition of pre-deposit of Central Excise duty amounting to Rs. 43,200/- and for stay of the recovery thereof.
2. The stay application was heard on 8-11-1994 when Mrs. Archna Wadhwa, Advocate appeared for the appellants. Shri K.K. Jha, SDR represented the respondents.
3. Mrs. Archna Wadhwa, the learned Advocate submitted that the appellants were engaged in the manufacture of Choke cover. The department had sought to classify these goods as parts of electrical lighting fittings, under sub-heading No. 9405.00 of the Schedule to the Central Excise Tariff Act, 1985 (hereinafter referred to as the ‘Tariff”), while the appellants had claimed classification under sub-heading No. 7326.90 of the Tariff, as other articles of iron or steel. The goods produced by them were a part of fluorescent tube chokes which falls under sub-heading No. 8504.00 of the Tariff. The learned Advocate 1995 ] P.C. METAL INDUSTRIES v. COLLECTOR OF CENTRAL EXCISE, NEW DELHI 125 pleaded that the goods were rightly classifiable under sub-heading No. 7326.90 of the Tariff. Financial hardship was also pleaded on behalf of the appellants.
4. Shri K.K. Jha, the learned SDR pleaded that the Choke was an electric lighting fitting, and that the cover was a part of the electric lighting fitting. He submitted that the classification under sub-heading No. 9405.00 as part of electric lighting fittings, was correct.
5. We have considered the matter. The appellants before the Assistant Collector of Cenral Excise had contended that “the choke cover in question is a part of fluorescent choke which falls under sub-heading No. 8504.00, and as such the same is classifiable either under 7326.90 or 8504.00”. The Assistant Collector, Central Excise, New Delhi had classified the goods under sub-heading No. 9405.00 of the Tariff. In the grounds of appeal, the appellants have further stated that “the MS choke cover is used in the manufacture of chokes which may be ultimately used in the electric fittings. As such the choke cover becomes a part of the choke which is a complete identifiable product in itself.” From the reading of the three Tariff entries 7326.90, 8504.00 and 9405.00, it appears that chokes for fluorescent tubes are classifiable under Heading 8504.00 as electrical transformers, static converters (for example rectifiers) and inductors. As per Chapter Note (f) under Chapter 94, lamps or lighting fittings of Chapter 85 are not covered by Chapter 94. Further it is seen from Notification No. 160/86-C.E., dated 1-3-1986 against S. No. 2 of the Table annexed to that notification that the chokes for fluorescent tubes fall under Heading No. 8504. The entry against S. No. 2 reads as under :-
“2. 8504 : Goods other than the following namely :
i. Transformers
ii .Choke for fluorescent tubes.”
6. It is seen that under the old Central Excise Tariff electric lighting fittings were classifiable under Item No. 61 of the Tariff. The description under that Item was as under :-
“Electric lighting fittings, namely :
Switches, plugs and sockets all kinds; chokes and starters for fluorescent tubes.”
It is seen that the chokes and starters for fluorescent tubes had to be specifically named under the Tariff description of electric lighting fittings. The Tribunal in the case of Automotive Ancillary Services v. CCE, Madras, 1987 (32) E.L.T. 735 (Tribunal) had observed that an indication of what is considered as lighting fittings can be had from the fact that chokes and starters for fluorescent tubes had to be specifically included in that Tariff Item.
7. As presently we are concerned with the disposal of the stay application, any further observations on merits of the case may not be proper. Suffice it to say that prima facie the choke cover appears to be classifiable under sub-heading 8504.00 of the Tariff. The appellants have also pleaded financial hardship. Taking all the relevant considerations into account, in the interest of justice, we dispense with the pre-deposit of duty and stay the recovery till the disposal of the appeal.