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TMI Blog1987 (3) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... one systems which have been named as MAX I, II and III having 1000, between 600 and 1000, and less than 600 lines. These systems were admittedly purchased not only by Indian Posts and Telegraphs Department for installation of small telephone Exchanges but also by private parties such as factories and other offices for their intra-communication system. The Collector of Central Excise, Bangalore held that these systems would be classifiable as intercom devices and fall under Tariff Item 33-D of the Central Excise Tariff, if sold to other than Indian Posts and Telegraphs department. When the respondents went up in appeal, the Board set aside the order of the Collector holding that the telephone system in question works with a Central Exchange having selection-cum-switching facility, with secrecy of communication between two points, whereas intercom devices, as commonly known, do not have such facilities. It was held that in an intercom, there is a point to point connection between those who are to communicate among themselves, whereas in telephone, such communication would pass through a central point. Accordingly, the Board held that MAX I, II and III systems fell out of the purview ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng device, after they are removed from the factory. Therefore, it is submitted, these items should also be classifiable as intercoms under Item 33-D of the Central Excise Tariff. 7. Shri A.K. Jain, learned S.D.R.. has also made a point that every day words in taxing statute are not to be understood in the technical sense, and that their meaning in common parlance should afford guidance. In this context, it is pointed out that it is not understood how items which are being used by private companies within their offices as intercom devices can be claimed to be classifiable as anything other than intercom. 8. In the light of the above arguments, it is submitted that the impugned products should be classifiable under Item 33-D of the Central Excise Tariff, regardless of end-use. When pointed out by the Bench, that this goes beyond the orders passed by the Collector in his order-in-original, Shri A.K. Jain submits that the Tribunal has the power to go into the question of correct classification independently of the orders passed by the lower authorities. He, in support of this product, cites the following case law :- 1. 1983 E.L.T. 234 - Bell Punch (India) Pvt. Ltd. v. Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sification for their products. 15. It is submitted that intercoms are limited to a maximum of 30 OMHS and operate within an area of 300 mts., whereas the impugned products are of the order of 1400 OMHS and can operate over an area of up to 10 miles. 16. Further, it is submitted on behalf of the respondents that in the order of the Collector as well as in the show cause notice issued by the Central Government, a point has been made regarding additional facilities being provided in respect of intercom equipment at the point of clearance. It is submitted that this is factually incorrect, that no additional facilities are provided by the respondents after clearance and further, that respondents enquired from the Department as to what was the material relied upon on the basis of which this conclusion has been reached, but the Department has not supplied the material on which they have relied. 17. The respondents have referred to various technical authorities to show that intercoms are equipments meant for use within offices only without exchange/signalling equipment, whereas the impugned products have the distinguishing features of having an exchange/signalling facility and provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have any relevance to the matter before us. It appears that the Department would like to argue that the product of Usha Electronics is identical. We are not inclined at this late stage to permit the opening of such a controversy which is also not a part of the pleadings before us. Similarly, the Department proposes to file as additional evidence copy of a letter from Karnataka Power Corporation Ltd. dated 1st September, 1986, well after the commencement of the hearing of this matter before the Tribunal. The obtaining of this letter appears to be in the nature of an investigation taken up while the appeal is being heard by the Tribunal and is, therefore, not to be encouraged. The filing of both of these documents is, therefore, rejected. The Department has also requested to be permitted to file some literature on MAX III equipment. This has not been objected to by the respondents. Being essentially in the nature of a catalogue, although belated, the filing of this literature as additional evidence is admitted. 23. The facts of the case, the evidence on record and the arguments made before us have been carefully considered by us. In the light of the show cause notice issued by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with a central exchange having selection-cum-switching facility with secrecy of communication between two points, whereas the intercom devices as commonly known, do not have such facility. It was observed that intercom devices provide limited speaking facility between a few locations which are in the nature of direct communication and a point-to-point connection between all those who communicate among themselves, whereas in the case of telephone, such communication have to pass through a central point. The Central Board of Excise Customs have, therefore, held that it is possible to differentiate between intercom and telephone systems and equipments. It is held that MAX I, II and III work on the principle of telephonic system and as such, all the systems should be categorised as telephones and not as intercom devices. This conclusion of the Board is supported by the finding of fact that all the equipment s in question are exactly similar, whether they are supplied to Posts Telegraphs Department or to private parties or individual customers, and it is held that the same equipment, when used within an organisation, is called an intercom, and when supplied to the P T Department, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar, whether they are supplied to the Posts and Telegraphs Department or to the individual customers or private parties. Therefore, this ground of appeal, against a finding of fact, which remains un-substantiated, has to be rejected. 29. The next ground of appeal arises from the description of the term telephone in Rule 472 of the Indian Telephone Rules, 1961 framed under Section 7 of the Indian Telegraphs Act, 1885. Both of these are discussed in the order-in-original itself. For facility of ready reference, this rule is reproduced below :- Any person may, without license establish, maintain and work a telegraph not being a wireless within the limits of a single building, compound or estate; provided that no telegraph line shall pass over or under a public road . There is no elaboration in the show cause notice issued by the Central Government as to how reading of this rule can at all support the view that the impugned equipment would be classifiable as intercom. Insofar as supplies to the P T Department are concerned. Rule 472 of the Indian Telephone Rules was relied upon by the Collector in his order-in-original in order to differentiate the equipment used without ..... 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