9911796707
TMI Blog2024 (2) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... n No.6/2006. A Show Cause Notice dated 04.06.2012 was issued alleging wrong availment of benefit of Notification 021/2002- Cus. at serial no.357B (ii), alleging that the imported goods are not accessories. After due process of law, the original authority passed the impugned order denying the exemption of BCD as per Notification No. 21/2002 and also exemption of CVD under Notification 06/2006 at serial no. 59 (i). The differential duty demand was confirmed along with interest. No penalties were imposed. Aggrieved by such order the appellant is now before Tribunal. 2. The Learned Counsel Sri T. Viswanathan, appeared and argued for the appellant. It is submitted that the subject goods are accessories of MRI machines. The Hon'ble apex court in a plethora of decisions has held that the word accessory is used to describe goods which may have been manufactured for use as an aid or addition; Thus goods when used to aid the function are add to the function of a machine would fall under the category of accessory. The imported items are recognised as accessories to machines. To support this argument the learned counsel relied on the decision in the case of Annapurna Carbon industries Co. Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied by the learned counsel to submit that in the said case a path speed work station (a computer) which only enhances the utility of a MRI machine must be considered to be an accessary to MRI. The said decision of the Tribunal has been affirmed by the Hon'ble Apex Court in Commissioner Vs. Manipal Academy of Higher Education, 2006 (198) ELT A128 (S.C). 2.5 It is submitted by learned counsel that though the department has denied the eligibility to concessional rate of CVD, under the Notification No. 6/2006, the department has not disputed the classification adopted by the appellant. The subject goods were classified under CTI 9018 13 00 by the appellant. The said heading refers to MRI apparatus. The appellant had adopted the said classification by applying Note 2 (b) to Chapter 90. As per Note 2 (b) to Chapter 90 the parts and accessories of goods of Chapter 90 if suitable for use solely or principally with the particular kind of machine, are to be classified with the machines, instruments or apparatus of that kind. The subject goods are used with MRI machines in order to enhance the MRI machine from a diagnostic machine to a therapeutic machine. The appellant has classified th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r serial no. 59 (i) of Central Excise Notification No.6/2006. Thus a new ground has been taken in the impugned order to confirm the differential duty which has not been proposed in the Show Cause Notice. The decision in the case of Reckitt and Coleman (I) Ltd., Vs. CCE - 1996 (88) ELT 641 (SC) and the decision in the cases of Commissioner of C. Ex., Nagpur Vs. Ballarpur Industries Ltd., 2007 (215) ELT 489 (S.C.) were relied to argue that the impugned order cannot travel beyond the Show Cause Notice. 2.8 Learned Counsel submitted that the demand is time barred and that the appeal may be allowed with consequential relief. 3. The Learned AR Shri. N. Sathyanarayanan appeared and argued for the department. The findings in the impugned order was reiterated. It is submitted that the original authority discussed in para 10 the functioning of the subject goods and correctly concluded that the subject good is a full-fledged apparatus in itself and it is not an accessory to a MRI machine. The subject good is a sophisticated medical equipment which carries out advanced role of High Intensity Focused Ultrasound for the treatment of uterine fibroid without surgery and so cannot be termed as an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the same heading ought to be classified with the machine, instrument or apparatus of the kind. It is not disputed that the subject goods can be used only with MRI machine. To be more specific the appellant has claimed that these machines can be used only with Phillip MRI machine. The department has not rejected or disputed the classification adopted by the appellant as parts/accessories of MRI machines. In such circumstances the department cannot deny the benefit alleging that the goods are independent by itself and are not parts or accessories. 5.3 Be that as it may, the subject goods cannot function without MRI machine. The conclusion of the original authority that the subject goods are standalone equipment is factually incorrect. In the case of Manipal Academy of Higher Education Vs. Commr. of Cus. Chennai - 2005 (190) ELT 113 (Tri. - Bang) supra the issue considered was whether path speed work station which is a computer based system for storing and assessing images developed in MRI systems can be held to be an accessory of MRI machine. The facts of the case are that the appellants imported first shipment of MRI system vide Bill of Entry 259838 dated 11.02.2000. The descript ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
