9911796707
TMI Blog1992 (8) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... f the view that as these refrigerators were fitted with the above type of unit, which are only fitted in the domestic type refrigerators as per the HSN, the same were classifiable under Heading 8418.22 read with Notification 100/90-Cus. and 122/91-Cus. and 166/86-C.E.chargeable to duty @ 100% + 50% + CVD Rs. 500/- per piece + 10% special CVD. The adjudicating authority classified the goods under Heading 8418.22 read with the above notifications and denied the benefit of Notification 59/87 on the ground that the refrigerators are interchangeable between hotel industry and domestic section. The Collector (Appeals) held that the use of the refrigerators in hotel rooms is not different from their use in a house room where they may be used as mini-bars or for storing small quantity of eatables and, therefore, the imported refrigerators cannot be other than household type. He upheld the adjudication order for the following reasons : (i) The appellants have themselves classified imported refrigerators under sub-heading "8418.22 - absorption type, electrical" (but this sub-heading is for refrigerator household type covering the sub-headings 8418.21 to 8418.50). (ii) Sub-heading 8418.61 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different and distinct from house hold type refrigerators which generally work on compressor system and are likely to be noisy while the imported refrigerators work on absorption system which is noiseless and, therefore, suitable for use in hotel rooms to avoid disturbance to the guests. He also submits that mini-bars are fitted with automatic defrost timer which automatically shuts off the mini-bar for two hours daily while the household refrigerators cannot be defrosted for two hours daily as food/contents would get spoiled. As there are no racks provided in the imported refrigerators it is not possible to store any food-stuff therein and this is also a distinction between the refrigerators imported and household refrigerators which would contain egg rack, butter rack, vegetable tray, etc. He further submits that the size of the refrigerator is also relevant for distinguishing between household type of refrigerator and mini-bar refrigerator as the minimum size of a domestic refrigerator is 65 ltrs. While the mini-bar refrigerator is of 40 ltrs. capacity and cannot be used effectively for anything except to hold beverage bottles. The learned Counsel also refers to the affidavits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sified the goods as falling under 8418.22 which covers household type refrigerators, they cannot now claim that the goods are other than household type and entitled to the benefit of the above notification. He cites the decision of the Hon'ble Supreme Court in the case of Nat Steel Equipment P. Ltd. v. Collector of Central Excise, reported in 1988 (34) E.L.T. 8, in support of his stand that the size and price of the imported items and the space required for them were not the relevant criteria for determining whether they are domestic or other than domestic type of refrigerators. He supports the impugned order in all respects. 5. We have heard both sides, carefully considered their submissions and perused the records. The catalogue of Electrolux mini-bar RA 138 LD (identical in all aspects to the imported model except for the difference that the imported model has no racks in the inner door) describes the goods as follows : "Electrolux RA 138LD. The 40 litre mini-bar, which can be positioned as a free-standing unit or built in. With a dark brown metal housing, the door can be given its own decor. The cooling unit at the rear is fully integrated in to the housing. Standard feature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The capability of use of the imported items as household refrigerators will not alter their basic character and nature as refrigerators other than household type. It is true that the HSN mentions that the domestic refrigerators are commonly fitted with absorption unit. However the question here is not whether the imported items can be used in household but whether they are "household type". It may also be possible to store food in the racks of the imported refrigerators. But that by itself would not make them domestic refrigerators. The absence of regular features of domestic refrigerators viz. egg rack, butter rack and vegetable tray; the method of defrosting; the size and the mean annual ambient temperature distinguish the imported refrigerators from domestic refrigerators. The lower appellate authority has erred in holding that the refrigerators admittedly imported for use in Five Star Hotels cannot be other than those of household type. The goods appear appropriately classifiable under Heading 8418.69 which covers other "refrigerators or freezing equipment, other than compression type unit whose condensers are heat exchangers" as the classification is determined by the ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to TI 68 as there was no dispute that the goods therein was of the industrial type. In the present appeal we have already held that the imported items are other than household type refrigerators. Therefore, in our view the goods would be eligible for the benefit of Notification 59/87 against Sl. No. 13 thereof. The reliance placed by the learned DR on the judgment of the Supreme Court in the case of Nat Steel Equipment (supra) does not advance the case of the Department. The Supreme Court was seized of the issue of classification of items such as storage tank, cooking range, baking oven, bread toaster, chappatty plate, etc. claimed under TI 68 by the assessees and held by the Department to be classifiable under TI 33C. The Supreme Court in paragraph 5 as follows : "It is manifest that these equipments were electrical appliances. There was no dispute on that. It is also clear that these are normally used in household and similar appliances are used in hotels etc. The expression "similar" is a significant expression. It does not mean identical but it means corresponding to or resembling to in many respects; somewhat like; or having a general likeness. The statute does not contempla ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
