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TMI Blog2002 (12) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... or under Heading 84.19 as confirmed by the Commissioner (Appeals). Appeal has also been filed by Revenue against treating the price as cum-duty price. 2. Shri R. Swaminathan, learned Consultant, submitted that BOD Incubators stand for Bio Chemical Oxygen demand and are used for studying and testing of culture of bacteria, etc.; that Other Incubators are used by medical practitioners for pathological purposes; that Heading 84.19 covers items that are used for mere treatment of materials by a process of involving a change in temperature; that the said Heading does not cover such of those machinery etc. that performs functions which extend beyond the treatment of materials; that the impugned equipment is only providing particular ambience/e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat these are used to test samples of blood etc.; not merely with an intention to purify the blood but the main objective is to study its culture and characteristics in order to perform the diagnosis of the blood; that as per HSN Explanatory Notes, Heading 90.18 covers very wide range of instruments and appliances which are used only in professional practice either to make a diagnosis or to prevent or to treat an illness or to operate; that as the Other Incubators are used for incubating cultures and to incubate biochemical tests at desired temperature, these are classifiable under Heading 90.18; that the change of temperature is only a secondary function and as such these can not be classified under Heading 84.19 of the Tariff. Regarding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment for growth of bacteria and as such the impugned product is classifiable under Heading 84.19 of the Tariff which is a specific Heading; that a product has to be classified in specific Heading rather than a general Heading. Regarding Other Incubators, the learned DR mentioned that the literature submitted by the appellants reveals that they are based on the process involving a change in temperature; that the basic function of these incubators is temperature control and as such they are appropriately classifiable under Heading 84.19 only. 4. We have considered the submissions of both sides. The rival Headings of the Central Excise Tariff reads as under : 84.19 - Machinery, plant or laboratory equipment, whether or n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he BOD incubator has the facilities of providing varying temperature which is ensured by means of having a compressor and a cooler. The machine is used by Research Institutions engaged in studying and developing the samples of bacteria by subjecting them to different temperatures and finally developing a culture which is then maintained at specific conditions to know the correct use of the research and arrive at certain scientific conclusions. It is thus apparent that BOD Incubator is covered by the description given in Heading 84.19 as it is designed to submit materials to a heating or cooling process in order to cause a simple change of temperature. This is also apparent from the Technical literature (page 390 of the Paper Book) wherein i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ike. For falling under Heading 84.36, the product has to be an agricultural machinery not covered by Heading 84.32 to 84.35. Merely because BOD incubator is used in Testing Station would not make it an agricultural machinery. Further as per literature, BOD Incubator is used in biology, botany, virology, oceanography, water pollution, sewage, agriculture and food research laboratories. We thus hold that BOD Incubator is classifiable under Heading 84.19 of C.E.T.A. 5. The Assessee has claimed the classification of Other Incubators manufactured by them under Heading 90.18. It has been submitted by them that these incubators are used essentially to study a certain quantity of blood, urine, etc., classify them according to certain characteri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of the Tribunal in the case of Srichakra Tyres Ltd. Moreover, the Supreme Court in Maruti Udyog Ltd., supra has held that the sale price has to be regarded as the entire price inclusive of excise duty because it is the respondent who has, by necessary implication, taken on the liability to pay all taxes on the goods sold and has not sought to realise any sum in addition to the price obtained by it from the purchaser. Under the circumstances, the Tribunal was right in directing that the respondent is entitled to benefit of Section 4(4)(d)(ii) of the Central Excises Salt Act. Following the ratio of these two decisions, we reject the appeal filed by the Revenue [E/476/2002-B]. The Appeal No. 1809/2002-B filed by Revenue against Order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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