Dr. Ar. Lakshmanan, J.— Delay condoned.

2. This appeal is directed against Final Order No. 1943 of 2004 dated 6-12-2004 passed by the Customs, Excise and Service Tax Appellate Tribunal, Bangalore in Appeal No. E/399 of 2001. The appellant before us is the Commissioner of Central Excise, Bangalore.

3. We have heard Mr T.S Doabia, learned Senior Counsel for the appellant and Mr A.R Madhav Rao, learned counsel for the respondent.

4. The issue involved in the present appeal is whether the single panel circuit-breakers are classifiable under Chapter Sub-Heading 8535.00 (rate of duty 5%) as claimed by the assessee or under Chapter Sub-Heading 8537.00 (rate of duty 20%) as per the Revenue and whether the Board's Circular F.No 32/8/94-CX (Section 37-B order) dated 14-7-1994, which has clarified that the single panel circuit-breakers are classifiable under Chapter Heading 85.37, has retrospective effect.

5. The assessee is engaged in the manufacture of electrical appliances falling under Chapter 85 of the Central Excise Tariff Act, 1985. The assessee had filed the classification list classifying the products under Chapter Sub-Heading 8535.00, CETA, 1985 and availing the benefit of Notification No. 52/93 dated 28-2-1993 attracting duty @ 5% ad valorem.

6. A show-cause notice was served on the assessee to classify the goods in question under Chapter Sub-Heading 8537.00 attracting duty at the rate of 20%, as single control panel manufactured by the assessee consists of a panel equipped with more than two apparatuses of Headings 85.35 and 85.36 (like circuit-breaker/fuses/switches/plugs/socket/relays). The relevant tariff entries are quoted hereinbelow:

“85.35 Electrical apparatus for switching of protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, fuses, lightning arresters, voltage limiters, surge suppressors, plugs, junction boxes).

85.37 Boards, panels, consoles, desks, cabinets and other bases, equipped with two or more apparatus of Heading 85.35 or 85.36, for electric control or the distribution of electricity.”

7. The Assistant Commissioner decided the classification of the products in question, under Chapter Sub-Heading 8537.00 and confirmed the duty demand of Rs 22,13,129.

8. Aggrieved by the aforesaid order, the assessee preferred an appeal to the Commissioner (Appeals) who by his order dated 28-11-1995, set aside the impugned order dated 31-10-1994 and remanded the same for de novo trial, for the reasons that the order was passed without hearing the assessee in respect of the first show-cause notice dated 31-12-1993.

9. The case was again taken up and the adjudicating authority relying mainly on the two entries in the Tariff Act decided that the single panel circuit-breaker manufactured by the assessee has to be classified under Chapter Sub-Heading 8537.00 and confirmed the duty demand of Rs 22,13,129.

10. Aggrieved by the said order, the assessee preferred an appeal to the Commissioner (Appeals) who observed that to merit classification of the panel under Chapter Sub-Heading 8537.00, it should contain two or more apparatus of Heading 85.35 or 85.36 and in the instant case, the single panel contains only the circuit-breaker falling under Chapter Heading 85.35 and hence the subject panel is not classifiable under Chapter Heading 85.37 and accordingly the single panel circuit-breaker merits classification under Chapter Heading 85.35, and, accordingly, set aside the order and allowed the appeal. The Department preferred an appeal against the said order in the Customs, Excise and Service Tax Appellate Tribunal, Bangalore which relied on a ruling of the Tribunal in Eswaran & Sons Engineers Ltd. v. CCE (1999) 112 ELT 1011 (cegat) which upheld the classification under Heading 85.35 and has noted that the Board's circular (Section 37-B order) issued on 14-7-1994, does not have a retrospective effect but only a prospective effect to classify the item under Chapter Heading 85.37 Since the periods under dispute are 24-6-1993 to 22-11-1993 and 1-12-1993 to 27-2-1994, which is prior to the issuance of CBEC Circular F. No. 32/8/94-CX dated 14-7-1994 which does not have retrospective effect and has only prospective effect to classify the goods in question under Chapter Heading 85.37, the departmental appeal has been rejected. Aggrieved by the rejection of his appeal, the Commissioner of Central Excise, Bangalore filed the above appeal before this Court.

11. Mr T.S Doabia, learned Senior Counsel for the appellant took us through the orders passed by the authorities below and also other relevant records. He submitted much prior to 14-7-1994, a show-cause notice was issued by the Assistant Collector on 17-12-1993 on the basis of his interpretation of the above two entries and the order passed by the Assistant Collector dated 19-12-1994 is also on the basis of his interpretation of the above two entries and that the said order is not based on the circular dated 14-7-1994 and, therefore, the circular had no application to the facts of this case. He would further submit that under Section 37-B of the Act, the Board is empowered to issue instructions to the Central Excise officers for the purpose of uniformity in the classification of eligible goods which instructions, are required to be followed by such officers. However, under proviso (a) to Section 37-B, an exception is made. The said proviso states that the said instructions, orders or directions cannot make any Central Excise officer to dispose of a particular case in a particular manner. Similarly, under proviso (b), such instructions shall not interfere with the discretion of the Commissioner of Central Excise (Appeals) discharging appellate functions. In view of the proviso to Section 37-B, the said circular dated 14-7-1994 issued by the Board was not applicable to the facts of the said case. Therefore, he would submit the circular dated 14-7-1994 had no application to the facts of the present case. It is further submitted that switches, fuses, relays, plugs, junction boxes, etc. have been given the status of separate/individual items. Also without these items main equipments/machinery cannot function. Therefore, though they may be parts of certain machinery, they have to be classified under those headings where they are specifically mentioned/classified. Thus, the panels manufactured by the assessee contain more than two apparatuses falling under Heading 85.35 vide relays, circuit-breakers, switches, position indicators, etc. Therefore, the goods manufactured by the assessee are correctly classifiable under Heading 85.37

12. Concluding his argument, Mr Doabia submitted that the matter requires investigation and, therefore, be remitted to the authorities concerned for fresh consideration.

13. Mr A.R Madhav Rao, learned counsel for the respondent submitted that when there is a concurrent finding of fact in favour of the respondent, the appeal filed by the Department has no merits. It is submitted that the issue involved in the present appeal is a question of fact which has been decided in favour of the respondents both by the Commissioner (Appeals) and by the Tribunal and thus there is a concurrent finding of fact in favour of the respondent and the Department's appeal ought to be dismissed in view of the same. Learned counsel has also invited our attention to the counter-affidavit filed on behalf of the respondent and the detailed reply made thereunder to the civil appeal filed by the Revenue. Learned counsel further submitted the circular being oppressive and against the respondent has to apply only prospectively and cannot be applied retrospectively. In other words, a beneficial circular has to be applied retrospectively while an oppressive circular has to be applied prospectively. Thus, when the circular is against the respondents they have a right to claim the enforcement of the same prospectively. It is further submitted that for the period in question, trade notices had been issued classifying the circuit-breakers under Heading 85.35 or 85.36 depending upon the voltage, which are binding upon the Department. Thus, he submitted that the circuit-breaker is classifiable under Heading 85.35 He would further submit that the Tribunal has allowed the appeal filed by the respondents by following its own order in Eswaran & Sons (1999) 112 ELT 1011 (cegat) and has not given any finding on the merits of the matter.

14. We have perused the order impugned in this appeal, other connected records, and considered the rival submissions.

15. In the instant case, the assessee had filed a classification list effective from 1-3-1993, classifying the single panel circuit-breakers under Heading 85.35 and claiming concessional rate of duty at 5% under Notification No. 52/93 dated 28-2-1993. The said classification list was approved by the jurisdictional Assistant Commissioner on 10-6-1993. Thereafter, the assessee cleared the said goods in accordance with the approved classification list. When this approved classification was proposed to be revised to reclassify the single panel circuit-breakers under Heading 85.37 of the Tariff Act, such reclassification can take effect only prospectively from the date of communication of the show-cause notice proposing reclassification. In the instant case, the show-cause notice was communicated to the assessee only on 31-12-1993. Therefore, as rightly urged by the learned counsel for the respondent, the reclassification can take effect only from 27-4-1994 and accordingly the differential duty can be demanded only from that date.

16. In view of the above, we see no reason to interfere with the order passed by the Commissioner (Appeals) and as confirmed by the Tribunal. The appeal is accordingly dismissed.

17. However, there shall be no order as to costs.