2002 (12) TMI 308 - AT - Central Excise

Summary

Issues involved:
Classification of "BOD Incubators" under different headings of the Central Excise Tariff Act, classification of "Other Incubators," and treatment of price as cum-duty price.

Classification of BOD Incubators:
The main issue in the appeals was the classification of "BOD Incubators" under Heading 84.36, "Other Incubators" under Heading 90.18, or Heading 84.19 of the Central Excise Tariff Act. The appellant argued that BOD Incubators are not covered under Heading 84.19 as they do not involve a change in temperature for treating materials but provide a specific environment for bacterial growth. The appellant contended that as per Note 2(a) to Chapter 84, incubators are excluded from Heading 84.19, and thus should be classified under Heading 84.36. However, the respondent argued that BOD Incubators fall under Heading 84.19 as they involve a change in temperature for studying bacteria cultures, supported by technical literature. The Tribunal agreed with the respondent, holding that BOD Incubators are appropriately classified under Heading 84.19 based on their function and purpose.

Classification of Other Incubators:
Regarding the classification of "Other Incubators," the appellant claimed they should be classified under Heading 90.18 as they are used for studying blood samples and making diagnoses. The appellant provided customer certificates supporting the use of these incubators for bacteriological and pathological tests. However, the Tribunal found that these incubators involve a change in temperature process, supported by the equipment components and customer certificates mentioning temperature control for incubating bacteria. Therefore, the Tribunal upheld the classification of "Other Incubators" under Heading 84.19 as confirmed in the impugned order.

Treatment of Price as Cum-Duty Price:
The Revenue filed an appeal against treating the price charged by the appellant as cum-duty price. The appellant relied on previous decisions where the Supreme Court held that the sale price should include excise duty, granting the benefit of Section 4(4)(d)(ii) of the Central Excise Act. The Tribunal dismissed the Revenue's appeal based on the Supreme Court's decisions and rejected the appeal filed by the Revenue against the waiver of pre-deposit under Section 35F of the Central Excise Act.

In conclusion, all appeals filed by both the Assessee and the Revenue were rejected by the Tribunal based on the detailed analysis and classification of BOD Incubators, Other Incubators, and the treatment of price as cum-duty price in accordance with the Central Excise Tariff Act and relevant legal precedents.