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2017 (5) TMI 754 - AT - Central ExciseClassification of manufactured goods - Orthopaedic Heating Pads/Belts/Bands - classifiable under CTH 9021 10 00 or under CTH 3005 90 40? - Held that: - It can be seen from the HSN explanatory note to Chapter Heading No. 9021, at Sr. No. 111, it indicate that the belts would fall under Orthopaedic appliances which are used for the purpose of diagnosis - the HSN explanatory note also supports the case of the assessee for the classification the product under Chapter Heading No. 9021. We also find support in the dictionary meaning of the words orthopaedic and appliances - 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. Classification of Bandages - the Department's stand is that the item is classifiable under Tariff Entry No.3005 90 40 of Central Excise Tariff and is chargeable to duty. On the other hand, the appellant's stand is that they are not manufacturing such bandages but are trading in the same in the ordinary course of resale trade - appellant's contention is that since they do not manufacture the subject goods on which the duty has already been paid, the question of demand of duty on such bandages does not arise - Held that: - On this issue also, the Tribunal has given the decision in same case of Ascent Meditech Ltd. [2015 (8) TMI 1122 - SUPREME COURT], where it was held that 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. In the absence of any activity on such finished goods, in our view, the said product cleared from the factory premises as such cannot be subjected to any duty as Central Excise duty is on manufacture. Appeal allowed - decided in favor of appellant.
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