Judgment:
1. These two appeals are filed against the orders passed by the Collector of Central Excise (Appeals) in A. No. 288/88, dated 28-2-1989 as well as A. No. 62/89, dated 25-7-1989. These appeals are connected matters relating to the classification of the goods in question which was involved in A. No. E/2177/89-C which has been disposed of by this Tribunal in terms of Order No. 1897/97.
2. The appellants are absent today. The learned Advocate sent a letter stating that since these 2 appeals are pertaining to the refund to be granted to the appellant and since these are connected with the earlier orders in case of the very same party, the matter may be remanded to the adjudicating authority for a de novo decision in the light of our Order No. 1897/97.
3. Heard the learned JDR for the department, Shri Murugandi. He also stated that since these are connected matters, the same may be remanded to the adjudicating authority.
4. We have considered the submissions of both sides. In our earlier order at pages 6 and 7 we have held as follows : "It is thus seen the functional character of the product is truly that of a seat. The product as it emerges is seat or saddle which can be straightaway fitted to the scooter or motor cycle. Under Chapter 39, Notes 2(o), parts of aircraft or vehicles are excluded.
Seats are nothing but parts of vehicles and it can never be said that these are known in the trade parlance as articles of polyurethane foam. Therefore the classification of the same under Heading 3216.01 as polyurethane foam is not correct as done by the learned lower authorities. Therefore these seats used for the motor cycle are correctly classifiable under Chapter Heading 87.14 and we order accordingly.
7. As far as the other seats used for the motor vehicles except two-wheelers are concerned, the same principles apply to the facts of this case and it cannot be said that they are classifiable under Heading 3426.10 and more particularly in view of the observations of the Tribunal in similar facts and while deciding the case under the erstwhile tariff.
8. The argument of the learned JDR is that this merits classification under 94.01. Heading 94.01 reads as follows: "Seats (other than those of Heading No. 94.02), whether or not convertible into beds, and parts thereof.".
In Note 2 of Chapter 94, Section XX, it is clearly stated that the articles referred to in Heading Nos. 94.01 to 94.03 are to be classified in those headings only if they are designed for placing on the floor or ground. But again it is mentioned in the Note that the following items are to be classified in the above mentioned headings even if they are designed to hung, to be fixed to the wall or to stand one on the other. The items mentioned therein are as follows: (a) Cupboards, book cases, other shelved furniture and unit furniture.
Therefore these seats of a kind used except for the two-wheelers it can be classified under Heading 94.01 is a new point which is now urged before us by the learned JDR and this point was not before the learned lower authorities. Therefore the facts in this case are to be appreciated by reference to the use etc. and for this purpose we are of the view that the matter requires to be remanded to the adjudicating authority as to whether these seats are to be classified under Chapter Heading 94.01 as contended by the learned JDR or whether they merit classification under 87.08. In the above said view the appeal is partially allowed by holding that bare seats used for two-wheelers are classifiable under Chapter Heading 87.14 of the Central Excise Tariff and the bare seats of the kind used for motor vehicles except for two-wheelers the matter is remanded to the learned lower authority to find out whether the correct classification is under 87.08 or 94.01. The appeal is allowed in the above terms. The adjudicating authority should decide the matter with respect to the bare seats of a kind used for motor vehicles except two-wheelers by grant of personal hearing to the appellants." 5. Accordingly, we find that since these refund applications are also connected matters which are required to be decided in the light of our earlier order, we set aside the impugned order and remand the same to the adjudicating authority for de novo consideration and decision in the light of the above said decision quoted supra.