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TMI Blog1987 (7) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) Baking Oven (4) Deep fat frayer (5) Bain Mafie (6) Sterilizing Sink (7) Expresso Coffee Machine (8) Steam Jacketed Vesel (Steam operated) (9) Bulk Toaster (10) Bulk Cooker Fryer (11) Chapatty Plate/Chapatty Puffer and Chapatty Plate.Puffer (12) Dish Washing Machine (13) Potato Peeler and (14) Masala Grinder 4. The Asstt. Collector held the view that products 2 to 14 appeared to be classifiable under T.I.33C as they were covered under the Explanation given below the description of goods under T.I.33C. A notice was issued to the Respondents to show cause as to why the classification of the items should not be approved under T.I.33C. In their reply, the Respondents contended that earlier classification lists had been approved by the Department under T.I.68. Their representations were considered and orders were passed on 19-6-1980 holding that the products at serial Nos. 2 to 14 were rightly classifiable under T.I.33C in the light of the Explanation - I to the said Tariff Item. Another show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the classification list despite the prior approval in certain circumstances, namely if the process of manufacture of the goods have changed, or if the relevant entries in the Tariff have undergone a modification, or if there has been a subsequent pronouncement of a High Court, or the Supreme Court, which necessitates reconsideration of the issue. It was urged that if fresh facts are brought on record which, if considered, would result in a different view being taken, the opening of a case on the basis of fresh facts would be necessary. Reliance was placed on New-chem Plastics [1984 ECR 658 (Tribunal)]. A modification of the classification list can be resorted to even under Rule-173-B(5). Reliance was placed on orders No. 70-79 of 1987-BI dated 4-2-1987. The S.D.R., therefore, argued that the impugned order should be set aside. 8. Shri Gopal Prasad, Consultant, for the Respondents, urged that the appellate authority has adverted to Explanation - I of Tariff Item 33C. The term similar would mean having characteristics in common , which are very much alike . The appliances herein (most of them) function with 440 volts while the domestic electrical appliances can function only un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture in respect of the term domestic electrical appliances . From the nature of the goods it cannot be denied that they are normally used in household. According to the Department, similar appliances used in hotels, restaurants, hostels, offices, hospital, etc. would also attract duty under T.I.33C. According to the Respondents the classification under Section 33C would not be justified because these are Heavy duty canteen equipment s. In their summary of submissions before the Collector of Central Excise, they have set out the following features in support of their contention that the products are not classifiable under T.I.33C :- (1) the above mentioned items are specially designed for use in very big canteens attached to industrial units, big hotels, hospitals, etc., where food in bulk quantity for hundreds of people is required to be prepared and served; (2) such items do occupy considerable floor space, (3) require electric power exceeding 230 volts in order to have considerable capacity for preparing and serving food, and (4) are of prices ranging between Rs. 7,000/- to Rs. 1.5 lakhs. These are stated to be very important and relevant factors for distinguishing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e type, design and size of items which are used in a domestic environment should be used in hotels, restaurants, hospitals, hostels, etc. If the items are similar appliances, normally used in the household, such as Expresso coffee machine, bread toaster, dish washing machine, etc., the liability to duty under T.I. 33C will arise. 13. In 1966 S.T.C. page 581 [Viswa Company v. The State of Gujarat], the question arose whether electric fans would be domestic electrical appliances for the purpose of Bombay Sales Tax Act. At page 590 we find the following passage :- A domestic electrical appliance, in our opinion, would be an electrical appliance of a kind generally used for domestic purposes. It may also be used at places other than the home or the house, but that would not destroy the character of a domestic electrical appliance which attaches to it by reason of its being a kind of an electrical appliance generally used for the household. There are several electrical appliances which are generally used in the household, such as electric irons, electrical sewing machines and electrical cooking-ranges which are also used in other establishments. But these electrical appliances do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... items under T.I. 68, there is no justification for the Revenue to turn round and allege that there was an intention to evade payment of duty. The modification of the classification list could only be prospective and not retrospective in the circumstances of the case. 17. On the question of demand, we are of the view that the demand could be sustained under Section 11-A only for a period of six months prior to the issue of the show cause notice. In the absence of any proof of suppression of facts, the longer period of limitation would not be applicable. The show cause notice raising a demand of duty was issued on 8-9-1980. The demand is, therefore, sustained for the period 9-3-1980 to 30-6-1980 in respect of items 3 to 7 and 9 to 14. The Appeals are allowed with the above modifications. 18. [Per H.R. Syiem, Member (T)]. - The learned Counsel for Nat Steel Equipment said that the goods whose assessment he disputes, that is, those which are electrically operated, are not similar to domestic electrical appliances or electrical appliances normally used in households. The appliances which he disputes are used in hotels etc. as heavy duty equipment s for bulk cooking and so on, and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation, then it carries a meaning and gives the heading a scope and expansion it did not have. There is little doubt in my mind that the explanation was meant to extend the heading to similar appliances not ordinarily used in domestic households. I am, therefore, of the opinion that electric toasters, electric cooking ranges, electric coffee machine etc. of large sizes running on voltages higher than the voltage available in households are also to be covered by the heading. 22. There is, to be sure, an anachronism. How can a toaster used in a hotel be similar to a toaster used in a family kitchen? I see no answer. The explanation says domestic electrical appliances used in households, and similar appliances used in hotels, etc. No appliance used in a hotel can be similar to a domestic appliance - it may be similar to the appliance, but it cannot be similar to the domestic appliance. 23. The dichotomy stands out, and the learned Counsel for the asses-sees had good grounds for saying that the electrical appliances used in hotels etc. for their sheer size and power input alone would be not similar to domestic electrical appliances. 24. But, the explanation, faulty though it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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