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TMI Blog1988 (8) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... ure. Appellants also took the stand that the goods were not ordinarily manufactured with the aid of power. It is admitted that power was being used for drilling holes in respect of certain pieces at the time of the visit of the Central Excise Officer, but this, it is submitted, was done by the workers in their anxiety to complete the work for timely supply of the goods against the contract entered into by them. 3. The matter was adjudicated by the Collector of Central Excise, Delhi. He held that the articles manufactured by the appellants namely, head bows, bedsheet, instrument trollies, upper bow for foot end, invalid wheel chair, instrument and dressing trolley and lower bow for foot end, were steel furniture on the ground that these can be used in offices, homes and including hospitals . The learned Collector referred to the letter of Ministry of Finance (D R I) No. B/2/2/68-CX.I, dated 25-3-1968 according to which furniture included all movable articles which had the essential characteristic that they were constructed for placing on the floor or ground and which were used mainly for the utilitarian purpose to equip private dwellings, hotels, theatres, cinemas, offices, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture is not furniture. The decision of the Bombay High Court in the case of Commissioner of Sales Tax v. Associated Dental Medical Supply Co. -1976 (37) S.T.C. 336 in which it was held that the dentists chairs are not furniture, has also been cited in their favour by the appellants. It is submitted that power is not normally used by appellants in the manufacture of hospital furniture, and, in view of the tariff description, which extends the levy only to furniture in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power, Item 40-CET will not cover the goods of the appellants. 10. It is also submitted that the redemption fine is excessive. The days production, which was seized, valued only Rs. 10,225/-. The redemption fine therefore should have been well below that amount and not more than 25%. It is also submitted that Rs. 20,000/- is an highly excessive penalty. 11. The learned departmental representative supports the view taken in the order of the Collector. However, he has no comments to make in the light of the case law cited by the appellants on the Sales Tax side, regarding the scope of the relevant entry tariff. 12. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niture but whether they were ordinarily so used and whether this could be accepted as such by the mercantile community and the consumer public. The imposition of a technical or artificial meaning to the entry furniture will result in the defeating and frustrating the intention behind the provisions, it was held. 14. The above decision was taken by the Allahabad High Court on 1-11-1968 and it was on the Sales Tax side. The question of liability of hospital furniture under Central Excise Tariff Item 40 came in for consideration more recently by the Supreme Court in the case of Elpro International Ltd. and Others v. Joint Secretary, Govt. of India, Ministry of Finance and Others -1985 (19) E.L.T. 3 (S.C.). In this matter the High Court of Bombay had taken the view that operation tables, which were manufactured by Elpro International Ltd., did not come within the purview of Item No. 40-CET. However, so far as X-ray protective screens were covered, they were held by the Bombay High Court to be steel furniture within the meaning of Item No. 40-CET. The Supreme Court held that the reasons for the view taken by the High Court in respect of operation tables were cogent and sound and agree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Item should be on the basis of words understood by a common man in common parlance, we would have to omit Items (ii) and (iii) of Random House Dictionary and Centre around Item No. (i). It was added that it was necessary to find out whether the impugned items were having the purpose of convenience-cum-decoration or they have some different specific utility value. In the words of the High Court: When the word furniture is thus to be understood in common parlance in our opinion, this concept of user and perhaps also of the price to be paid for those items, would offer us a good guide in concluding whether they are pieces of furniture". In this connection the High Court took note of the fact that the prices of the operation tables ranged from Rs. 7,500/- to Rs. 15,000/- and observed that no ordinary reasonable person with any sense of responsibility could classify such items as pieces of furniture. 18. Significantly, in the Elpro International Ltd. case, operation table was held to be not classifiable as steel furniture under Central Excise Tariff Item 40, not because it was hospital furniture. It was noted that the item consisted of an iron stand with a number of cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are all items which are commonly used in hospitals. They may not be items of decoration but they are certainly items for providing convenience and comfort to patients. It is not shown or claimed before us that are high cost items of sophisticated nature classifiable as specialised medical equipment. I am, therefore, of the opinion that the items which are referred to in the order-in-appeal would be classifiable under Central Excise Tariff Item 40 provided it can be shown that they are ordinarily manufactured with the aid of power. 22. The learned Collector has accepted the submissions of the appellants that they were manufacturing steel furniture essentially by using gas operated welding sets. The purchase of large quantity of gas by the appellant has been considered as establishing the veracity of the appellants. The Collector also held that there was no appreciable increase in the consumption of electricity when the items of steel furniture under reference were manufactured and has therefore given the appellants benefit of doubt so far as the demand of duty for the period 1971-72 and 1972-73 is concerned which has been set aside by him. 23. That leaves the question of confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reof excluding specified items. However, the interpretation put on the term furniture by the Allahabad High Court would be, in my view, relevant for our present purpose. 28. The goods in the case before the Allahabad High Court were operation tables, beds including fowler beds, bedside lockers, dressing carriages, instrument cabinets, revolving stools, instrument trollies, instrument tables and self propelling chairs. The contention for the Revenue was that these goods though intended for use in hospitals were amenable to comparable use in dwellings. They corresponded, with some variations, to articles in normal use. Nothing in their design or equipment precluded them from being put to domestic use. The Court observed from the catalogue produced by the assessee that the goods were specially designed for use in hospitals and were described as hospital equipment. The Revenue s contention that the description and design of the articles did not preclude them from being used as domestic furniture was not accepted by the Court. The test, in the Court s opinion, was not whether the articles were capable of being used as domestic furniture, but whether they were ordinarily so used and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was. On this point there is no material on record except a catalogue published by Paul Engineers on similar products manufactured by them and the appellants own leaflet. Applying the ratio of the Allahabad High Court judgment, the present goods must also be held to be not furniture within the meaning of Item 40, CET. 31. In the case of Elpro International Ltd. (supra) the goods in dispute were operation tables no doubt equipped with sophisticated devices and accessories to make them particularly suitable for surgical purposes. Apart from the special features of the operation table, they were not considered as furniture applying the common parlance test. I do not think it is permissible to invoke the aid of explanatory notes in the Customs Cooperation Council Nomenclature to interpret the entries in CET Schedule for the reason that the two Tariff Schedules are not pari materia/a and the CET was not, at the relevant time, patterned on the basis of CCCN. 32. In the above view of the matter, I am of the opinion that it has not been shown that the goods in dispute in the present case fall under Item 40, CET. As such I would propose an order setting aside the impugned order an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit of doubt and accept the version of the party that they have not used power in the manufacture of steel furniture during the abovesaid period (previous to 9-1-1973) on account of the following reasons". The reasons stated in the subsequent paragraphs are : 1. The statement of Shri Kamalpath Jain was in respect of use of electricity on 9-1-1973 only. 2. The quantum of electricity used as seen from the records does not support the case of use of electricity for manufacture of furniture in the earlier period. 3. The allegation of the Department (evidently in the show cause notice, copy of which is not available to us) was that power was found being used for making holes in the Instrument Trolley, and evidently not in other things. 34. Therefore, while the Collector has specifically held that there was no acceptable evidence of use of electric power in the manufacture of steel furniture prior to 9-1-1973, he had at the same time held that the stock found on 9-1-1973 was properly seized as the same had been manufactured with the aid of power. 35. When we look into the number of pieces seized his conclusion that all of them should have been manufactured with the aid of power ..... X X X X Extracts X X X X X X X X Extracts X X X X
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