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TMI Blog2000 (11) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... e notices by a common order. A penalty of Rs. 25,000/- was imposed under Rule 173Q of the Central Excise Rules, 1944 (hereinafter referred to as the Rules ). 2. The matter was heard on 25-9-2000 when Smt. Reena Khair, Advocate appearing for the appellants submitted that the anaesthetic trolley had been specifically referred in Notification No. 80/90-C.E., dated 20-3-90 and their classification had been referred to as under Heading No. 94.02 which covers the following :- 94.02 Medical, surgical, dental or veterinary furniture (for example, operating tables, examination tables, hospital beds with mechanical fittings, dentists chairs); barbers chairs and similar chairs, having rotating as well as both reclining and elevating movements; parts of the foregoing articles. The appellants had not suppressed the facts and the demand was hit by time-bar. The affidavits had been produced in support of the classification of the product under sub-heading No. 9402.00. It was her submission that the anaesthetic trolley was eligible for exemption under Notification No. 80/90-C.E., dated 20-3-90 and that as the anaesthetic trolley was specifically mentioned at Sl. No. 3 (XIX) of the Tab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the manufacturer as anaesthetic machine. The production of anaesthetic machine had not been declared by the manufacturer to the Department. While anaesthetic trolley was an item of furniture, anaesthetic machine was an appliance used in medical, surgical, dental and veterinary sciences. Misleading description was given in the classification lists, and approval was obtained on the basis of incorrect facts. The product was found to be more than an item of furniture. 5. In the product literature, the goods had been referred to as anaesthetic machines. For the Model CUB Anaesthesia Machine (102000) the standard features were given as under :- Standard Features * Compact frame to fit into space constraint areas * Complete powder coated trolley, mounted on large antistatic rubber castors (for easy rolling) with brakes on front castors * Completely enclosed non-interchangeable pneumatic circuitry (accessible by removing back cover) * Differentiated pipeline and 4 nos. cylinder pressure gauges * Vaporiser manifold with provision for three vaporisers (Back bar fitting) * Ether bottle Vaporiser * Oxygen failure and Nitrous Oxide cut off Alarm operates on Oxygen fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c rubber castors (for easy rolling) with brakes on front casters Completely enclosed non-interchangeable pneumatic circuitry (accessible only by removing back covers) Gas specific 4 Nos. preset regulators Differentiated pipeline and 4 Nos cylinder pressure gauges Vaporiser manifold with provision for three vaporizers (Black bar fitting) Oxygon failure and Nitrus Oxide cut off Alarm - operates on Oxygen failure, cuts off Nitrous Oxide supply simultaneously 9 inches long Oxygen and Nitrous Oxide gas flowmeter with HYPOXIA SAFETY DEVICE to ensure that the patient is never subjected to pure Nitrous Oxide in blow out doses Pin indexed gas specific dual Oxygen and Ntirous Oxide cylinder base system Guarded Oxygen flush botton with twist lock High pressure Oxygen outlet for ventilator operation (4.22kg/cm2 ) Patient Circuit with heidbrink valve, face mask and two litre rebreathing bag Instrument Shelf Fixed Stainless Steel Monitor shelf, Auxiliary shelf and Ventilator shelf Drawer Assembly Ether bottle Vaporiser From the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ley for anaesthesia equipment is different than the trolley with anaesthesia equipment. The trolley with anaesthesia equipment is not the anaesthesia trolley but the anaesthesia machine. The anaesthesia machine was not classifiable as an item of furniture but was classifiable as an appliance and apparatus used in the medical and surgical sciences and was classifiable under sub-heading No. 9018.00. According to the HSN Explanatory Notes under Heading No. 9018, the Heading No. 9018 does not cover medical or surgical furniture (refer exclusion (p) at page 1488 under sub-heading No. 9018.00). Anaesthetic apparatus and instruments have been specifically described for inclusion under Heading No. 9018 (refer Clause E at page 1490 under Heading No. 9018). 8. In the Indian Standard No. 11378-1985 specification for anaesthetic apparatus (anaesthetic machines) continuous flow inhalational for use with human, have been given. The apparatus could be movable or designed to be attached to a wall or ceiling structure. When it is designed to be attached to a wall or ceiling structure, there would be no use for the trolley. Thus, the use of trolley was not an indespensable requirement of anaes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sories and gadgets necessary for anaesthesia purposes to provide controlled flow of anaesthesia to the patients with improved patient safety and equipment operation. In their reply dated 26-8-94 to the show cause notice, they have referred to as under :- Whether it is called an Anaesthesia Machine or Anaesthetic Trolley, it becomes a trolley or machine only when it contains the standard features described in our pamphlet or the pamphlet of Blease Medical Equipment Ltd. These features have been described as standard features in our pamphlet and also in the pamphlet of Blease Medical Equipment Ltd. They are the following :- (i) Stainless Steel frame; (ii) Completely enclosed non-interchangeable pneumatic circuitry, which is made of copper. These are copper pipelines for inter-connecting pipelines of flow meters, gauges for oxygen and nitrous oxide, vapourisors warning devices, outlet points; (iii) The frame consists of instrument shelf, lower shelf, manifold, gas outlet block, yoke assembly on which cylinders are mounted. We find that in the Product Literature of M/s. Blease Medical Equipment Ltd., England, there is a separate description of Blease Medical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O2 Failure alarm with N2O cut off High pressure O2 outlet. Emergency O2 tape. Cardiff swivel gas outlet. Magill breathing assembly complete. Anti-static castors with brakes on front units. Circle absorber bracket. Ratchet cylinder key. 9 Flowmeter unit. The list of standard features of the Anaesthetic machines leaves no scope of doubt that the machines were much more than an item of furniture, the anaesthetic trolley. 13. From the standard features of the product before us it is clear that it is much more than a trolley and had been rightly classified as a machine, an appliance and apparatus for medical and surgical use. 14. We may also refer to the price of the product. The value of 61 items was declared as Rs. 20,63,352/- with an average price of Rs. 33,825 for each item. Other prices referred to are Rs. 33,000/- (page 127 of the paper book), Rs. 38,280/- (page 126 of the paper book), Rs. 32,500/- (page 124 of the paper book) and Rs. 37,500/- (page 122 of the paper book). 15. The appellants have referred to the affidavits filed by them in support of their claim that the anaesthetic trolley and anaesthetic machine were one and the same thing. We have alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be straightway accepted by the Tribunal without reference to the other facts and circumstances. In our view, in this case, the exporters who had given affidavits, could have easily produced the agreements entered into with the foreign buyres to show that the export contract was entered into before the sales were effected by the assessee and that the said sales are penultimate sales preceding the export sale. On the facts, the Tribunal appears to have come to the right conclusion. The tax case is dismissed. In the case of Indru Ramchand Bharvani v. Union of India - 1992 (59) E.L.T. 201 (S.C.), the affidavits of various witnesses were filed after the initiation of the proceedings and the Supreme Court observed that the burden was not discharged by the petitioners with such delay in filing of the affidavits. In the present case also, two affidavits were filed by the appellants on 6-2-95 while the show cause notice had been issued on 4-11-93 and 24-5-94. Thus, no reliance could be placed on such affidavits. 16. As regards the limitation in para 13, the adjudicating authority had discussed the justification for invoking the extended period of limitation. We find that no full a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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