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TMI Blog1986 (9) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... llector to give directions to the concerned Superintendent for the assessment of the product under T.I. 33(2). The appellants represented that they were submitting price-list, Form I, Gate Passes etc. under protest. The Assistant Collector did not consider the request of the appellants. The Collector of Central Excise, Calcutta was addressed by the appellants but the representation was not considered. The appellants moved the Board who set aside the orders of the Collector on the grounds of failure to comply with the principles of natural justice. 3. The appellants represented before the Collector technical aspects involved in the matter and asserted that their fans were specially designed fans for use in industrial system only. The Collector rejected the claim of the appellants which resulted in a further appeal before the Central Board. On 28.2.1981 the Central Board passed orders after considering the pleas raised by the appellants and held that there was no iota of technical evidence that these fans have been given any special shape or quality or have been designed as parts indispensable for the operation of an industrial system which are not essential for their use in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the advertisement where the hypothetical claims for user would have been used for attracting the customers. The learned Counsel drew support for his proposition from the following rulings: (i) 1980 E.L.T. 280, Blue Star Ltd. v. Union of India Anr.; (ii) 1979 E.L.T. 212, Subhash Chandarnishat v. Union of India and another; (iii) 1985 (22) E.L.T. 701, Union of India and others v. T.S.R. Co.; and (iv) 1986 (23) E.L.T. 343, Commissioner of Sales Tax v. Ciba of India Ltd. 7. It was further submitted that in the returns filed before the DGS D and other authorities the products have been described as industrial fans. 8. ISI 2312-1967 has been relied on by the Assistant Collector in his order but the Board has clarified the matter in respect of the Customs Tariff Item 73(18) that all exhaust fans would not automatically be assessable under item 73(18). Such of these which are used for an industrial system as parts indispensable for its operation and which have been given for that purpose some special shape or quality, which world not be essential for their use in any other purpose would qualify for assessment. 9. Shri Basu, the Technical Manager of the Company who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans, designed for use in an industrial system as parts indispensable in its operation and have been given for that purpose some special shape of quality use for any other purpose, and regulators therefor. Fifteen per cent ad valorem 3. Electric fans, not otherwise specified and regulators therefor. Twenty per cent ad valorem ." It is not disputed that these products are electric fans. The Assessee seek assessment of the products under item 2 while the Department seek to assess the products under item 3. Before item 2 could be attracted the following requirements have to be established: (i) It must be laminated electric fan (ii) Such type of electric fans must be designed for use in an industrial system as parts indispensable for its operation; and (iii) The should have been given for that purpose some special shape or quality which would not be essential for their use for any other purpose. These products are, no doubt, electric fans. The appellants endeavour to say that these fans have been given special shape and quality. But the special shape or quality for these fans should be in such a way that they are designed for use in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent appears to be that the fan should be an installation designed to be an impeller which is directly involved in the performance of any process or series of processes necessary for the manufacture, production or extraction of the commodity. 12. These fans, it was said, have industrial application, and are known as industrial fans. But that fact is that these fans may be used, that is, installed, in an establishment or in premises that can be categorised an industrial establishment. However, the installation of these fans does not integrate them into the industrial system, and they do not perform functions necessary or essential to the system as a system. That they have great utility in their assigned field is not in doubt - they remove and expel noxious fumes and gases from closed spaces where the presence of such fumes is undesirable. They keep the air fresh so that men who work in the room will not develop complications associated with breathing stale air. They circulate air and keep the ambience constant. They blow air inside a confined room or space into which oxygen rich air may not have easy ingress. In factories, clubs, offices, restaurants, cinemas, airport lounges and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that most of these fans are not used for domestic application being 3 phase fans or having too large coverage. The certificate of Acco Air Conditioning Corporation Limited would also refer to 3 phase fans and the diameter being too large. The Certificate of Shri Y.V.N. Rao specifies the voltage, besides the 3 phase supply, and expresses his opinion how these propeller type of exhaust fans could be recommended for domestic use. The certificate issued by Shri Mistry is particularly important for it deals with the purported industrial use. It is stated that in certain circumstances these would be indispensable. This observation in the certificate emphasis that these fans are merely exhaust fans for outflow of toxic gases in the industrial complex. On this ground alone, one cannot conclude that these are fans intended for an industrial system. It is too much to fancy that they are directly associated in any process in the manufacture of any commodity. 16. It is true that the classification of an item cannot be based solely on the advertisements issued by the manufacturer to attract customers. But the advertisements could also be taken as relevant evidence along with other facts to f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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