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TMI Blog2014 (7) TMI 1071X X X X Extracts X X X X X X X X Extracts X X X X ..... one by the assessee under Chapter Heading No.9021 is correct - Decided in favor of assessee. Demand of Duty on the product Bandages - Manufacturing by Job worker - Held that:- The lower authorities have not conducted any further investigation and the packages of bandages as produced before us would indicate that the entire manufacturing activity took place in the job worker's premises. The submission of ld.Counsel that they are not doing any activity seems to be correct as the adjudicating authority has not recorded any finding to indicate that the appellant herein was undertaking further activity in his factory premises on the bandages which are received from the job worker in duly packed form. - the said product cleared from the factory premises as such cannot be subjected to any duty as Central Excise duty is on manufacture. - Decided in favor of assessee. Extended period of limitation - Held that:- It is seen from the show cause notice that the said show cause notice categorically records that the demand has been raised based upon the scrutiny of the declarations filed by the appellant from 2004 onwards. We are at loss to understand why the very same exercise, if any, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority also invoked the extended period for confirming the demand beyond the limitation period, imposed interest on the amount of duty confirmed and also imposed penalties. Aggrieved by such an order, the appellant is before us. 4. Ld.Counsel appearing on behalf of the appellant would take us through the Order-in-Original and the show cause notices. He would submit that the appellant is manufacturing various products which are required for orthopaedical aid and produces a catalogue of the products manufactured by the appellant. He submits that the issue is only in respect of orthopaedic heating belt. After drawing our attention to the said catalogue, he would submit that the heating belts are marketed by the appellant as orthopaedic belts and are used for backaches, sprain, muscular joint pains, abscesses, women related pains under the guidance of Gynecologist. He would then demonstrate to us the product which is a question. After taking us through the entire Order-in-Original, he would submit that the adjudicating authority has not considered the issue of classification in its correct perspective. It is his submission that the adjudicating authority has simpl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm a specific task. If the meaning of the words orthopaedic and appliances is read together, it would indicate that the product manufactured by the appellant would fall under Chapter Heading 9021. He would rely upon the judgment of the Tribunal in the case of Nirmal Manufacturing Marketing Co. 2000 (117) ELT 825 (Tribunal), wherein the very same product has been classified under Heading No.9021. He would also rely upon the decision of the Tribunal in the case of Vishal Surgical Equipments - 1996 (88) ELT 655 for the same proposition. He would then draw our attention to the various VAT assessments done in respect of their product as orthopaedic appliances. He would then submit that the appellant has produced various certificates from leading orthopaedic doctors which indicate that the product manufactured by the appellant is used in the orthopaedic. It is his submission the adjudicating authority has simply brush aside the said certificate holding that Chapter Note 6 of Chapter 90 would cover the issue and held against the appellant. 4.1 He would submit that the second issue in this case is regarding bandages which are cleared from the appellants factory. He would show u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c appliances and submit that the products which are manufactured by the appellant are not used for preventing or correcting bodily deformities nor it is supporting or holding parts of the body following an illness, operation or injury. He would submit that the catalogue filed by the appellant clearly indicate that the products are used for multiple uses like relief pain and ache, soothing sore muscles from intensive work out, stimulating sensation in skin, increasing the flexibility and decreasing the pains of stiffness of soft tissues etc and are also used for weight loss purposes. He would also submit that once there is a clear definition in the Chapter itself, reliance need not be placed on any other expert opinion, more so in respect of certificate provided by the various orthopaedic doctors. He would submit that the Doctors may have given the certificate without looking into the use for which the said heating belts are to use. It is his submission that these heating belts are also having other usages and therefore the essential characteristics of these heating belts being not to prevent or correct bodily deformities, would merit classification under Chapter Heading No.9018. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eating belts under Chapter Heading No.90189099 while the assessee has classified the product under Chapter Heading No.90219090. The undisputed facts are that the appellant had filed the declarations of the products manufactured by them and cleared from the factory premises to the revenue authorities regularly. The show cause notice itself talks about the scrutiny of the declarations filed by the appellant as regards the product manufactured. The declaration as filed by the appellant indicate the manufacturing process of orthopaedic heating belts and other products. 10. On the basis of the factual matrix as indicated hereinabove, it is to be seen whether the classification of product as claimed by the Revenue is correct or as claimed by the assessee is correct in respect of orthopaedic heating belts. The rival entries are under:- Chapter 90 947 9018 Optical, Photographic surgical instruments Instruments and appliances used in medical, Surgical, dental or veterinary sciences, including scientigraphic apparatus, other electromedical apparatus and sight-test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gone through the literature as indicated on the product package, which indicates that the said product is marketed for relief from swelling, pain on various parts of the body. The reliance placed by the adjudicating authority on Chapter Note 6(i) of Chapter 90 seems to be mis-placed as the said chapter note specifically talks about the preventing or correcting bodily deformities. Undoubtedly, the pain due to swelling or any other accidental impact, by any common sense would create a situation where there could be a deformity which could be prevented by using orthopaedic heating belts. The claim of the appellant that said orthopaedic heating belts helps in reducing the swelling which is seen on the body is not contradicted by Revenue in the adjudication order. ii) Secondly, the bodily deformities as is sought to be prevented or corrected, in our considered view, need not be visible to the naked eyes. The bodily deformities can occur inside the body and internal defects like swelling, pain are also kind of bodily deformity as when a human being has a pain or swelling, he limps or is unable to use that part of the body as it is made for. Hence, giving a very narrow inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t noises as phonocardiograms; they may also be used as electrocardiographs) (iii) Cardioscopes (used in conjunction with the two preceding instruments to enable simultaneous observation of cardiograms and phonocardiograms). (iv) Rheocardiographs (electrical apparatus for measuring changes of electrical resistance due to the functioning of the heart). (v) Electroencephalographs (for examination of the brain). (vi) Electrosphygmographs (for registering arterial pressure and volume). (vii) Electrotonographs (for registering variations in arterial, intravenous or intracardial pressure). (viii) Electroretinographs (for measuring strain in the retina). (ix) Audiometers and similar apparatus (for hearing tests based on frequency variations). (2) Electrotherapy apparatus. Apart from its use in diagnosis, this apparatus is employed to treat diseases such as neuritis, neuralgia, hemiplegia, phlebitis, endocrinal anaemia. Certain of these appliances can be combined with electrosurgical instruments referred to in paragraph (6) below. (3) Iono-therapy apparatus used to administer active medicaments (sodium or l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicate the product which would fall under the Heading Orthopaedic appliances, we reproduce the same:- (I) ORTHOPAEDIC APPLIANCES These are appliances for: i) Preventing or correcting bodily deformities; or ii) Supporting or holding organs following an illness or operation. They include: 1) Appliances for hip diseases (coxalgia, etc.) 2) Humerus splints (to enable use of an arm after resection), (extension splints). 3) Appliances for the jaw. 4) Traction, etc., appliances for the fingers. 5) Appliances for treating Potts disease (straightening head and spine) 6) Orthopaedic footwear, having an enlarged leather stiffener which may be reinforced with a metal or cork frame, made only to measure. 7) Special insoles, made to measure. 8) Dental appliances for correcting deformities of the teeth (braces, rings, etc.) 9) Orthopaedic foot appliances (talipes appliances, leg braces, with or without spring support for the foot, surgical boots, etc.) 10) Trusses (ingeuinal, crural, umbilical, etc., trusses) and rupture appliances. 11) Appliances for correcting scoliosis and curvature of the spine as well as all medical or surgical corsets and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, facia and other supporting structures such as ligaments and cartilage. The meaning attributed to the word appliances is device designed to perform a specific task. If orthopaedic appliance has to be understood in a common sense, it would be an appliance which is used for prevention or correction of disorders of the muscles, joints, ligaments which in the given case, is not disputed that the orthopaedic heating belts are used for the purpose of treating or giving relief from swelling, pain etc. v) Fifthly, it is to be further noted that yet another issue came up before the Bench in the case of Nirmal Manufacturing Marketing Co. (supra) wherein the Bench held physiothermo heat retainer would fall under the Chapter Heading No.9021. Though we agree that the classification therein of similar product (may not be identical) is only of persuasive nature, but the reasoning therein would support the case of the appellant for classification of the product orthopaedic heating belts under Chapter Heading No.9021. vi) Sixthly, it is settled law that for classification of the product, the sub heading which is specific, should be preferred to general sub-heading. In the case in hand, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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