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TMI Blog2000 (11) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... d of 2 show cause notices by a common order. A penalty of Rs. 25,000/- was imposed under Rule 173Q of the Central Excise Rules, 1944 (hereinafter referred to as the 'Rules'). 2. The matter was heard on 25-9-2000 when Smt. Reena Khair, Advocate appearing for the appellants submitted that the anaesthetic trolley had been specifically referred in Notification No. 80/90-C.E., dated 20-3-90 and their classification had been referred to as under Heading No. 94.02 which covers the following :- "94.02 Medical, surgical, dental or veterinary furniture (for example, operating tables, examination tables, hospital beds with mechanical fittings, dentists' chairs); barbers' chairs and similar chairs, having rotating as well as both reclining and elevating movements; parts of the foregoing articles." The appellants had not suppressed the facts and the demand was hit by time-bar. The affidavits had been produced in support of the classification of the product under sub-heading No. 9402.00. It was her submission that the anaesthetic trolley was eligible for exemption under Notification No. 80/90-C.E., dated 20-3-90 and that as the anaesthetic trolley was specifically mentioned at Sl. No. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacturer as anaesthetic machine. The production of anaesthetic machine had not been declared by the manufacturer to the Department. While anaesthetic trolley was an item of furniture, anaesthetic machine was an appliance used in medical, surgical, dental and veterinary sciences. Misleading description was given in the classification lists, and approval was obtained on the basis of incorrect facts. The product was found to be more than an item of furniture. 5. In the product literature, the goods had been referred to as anaesthetic machines. For the Model CUB Anaesthesia Machine (102000) the standard features were given as under :- Standard Features * Compact frame to fit into space constraint areas * Complete powder coated trolley, mounted on large antistatic rubber castors (for easy rolling) with brakes on front castors * Completely enclosed non-interchangeable pneumatic circuitry (accessible by removing back cover) * Differentiated pipeline and 4 nos. cylinder pressure gauges * Vaporiser manifold with provision for three vaporisers (Back bar fitting) * Ether bottle Vaporiser * Oxygen failu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Patient Circuit with Heidbrink valve, face mask and two litre rebreathing bag * Instrument tray * Fixed Stainless Steel Monitor tray, Auxilliary tray, Ventilator tray * Drawer Assembly * Dimensions (a) W 650 x D 850 x H 1625 (approx.) (Unpacked) (b) W 740 x D 980 x H 1690 (Packed) * Weight - 80 Kgs approx. (without accessories) In the Instruction and Maintenance Manual, the salient features for the superior pioneer anaesthesia machine were given as under :- * Complete frame to fit into space constraint areas * Complete Powder Coated trolley, mounted on large antistatic rubber castors (for easy rolling) with brakes on front c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Coding System (HSN) Explanatory Notes, the scope of the term furniture has been defined as under :- "(A) Any "movable" articles (not included under other more specific headings of the Nomenclature), which have the essential characteristic that they are constructed for placing on the floor or ground, and which are used, mainly with a utilitarian purpose, to equip private dwellings, hotels, theatres, cinemas, offices, churches, schools, cares, restaurants, laboratories, hospitals, dentists' surgeries, etc., or ships, aircrafts, railway coaches, motor vehicles, caravan-trailers or similar means of transport. (It should be noted that, for the purposes of this Chapter, articles are considered to be "movable" furniture even if they are designed for bolting, etc., to the floor, e.g., chairs for use on ships). Similar articles (seats, chairs, etc.) for use in gardens, squares, promenades, etc., are also included in this category. (B) The following :- (i) Cupboards, bookcases, other shelved furniture and unit furniture, designed to be hung, to be fixed to the wall or to stand one on the other or side by side, for holding various ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could as well be fixed at permanent or semi-permanent location without the use of a trolley. The trolley was only for the convenient use of the anaesthetic machine. The standard components were not for making the anaesthetic trolley complete but to impart it the character of anaesthetic machine 10. Shri V.C. Singhal, Manager in his statement dated 3-11-93 had stated as under :- "It takes considerable time to the extent of 3 - 4 months to complete these trollies and that proper entries are made in central excise records after the completion of full testing, etc. It is not feasible to record the entries on day to day basis because the manufacture of trollies requires lot many components and considerable amount of time for testing." This also shows that what was referred to by the manufacturer as anaesthetic trolley was in fact anaesthetic machine. 11. From the evidence on record, and as discussed by the adjudicating authority in para 10 of his order, it is also seen that the persons concerned with the use of the product understood it not as an item of furniture but as a surgical appliance. The goods were referred to as anaesthetic machine trolley type, which appears to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ley had been constructed with economy in mind. As against the trollies, the anaesthetic machines were supplied with the following components :- Oxygen flush operated by push button with twist lock feature. Cylinder contents gauges for each gas except C3H5 Pipeline gauges for oxygen, air and nitrous oxide Oxygen operated failure warning device Oxygen operated multi gas cut off device (excludes air) Fixed fresh gas outlet with 22mm male/15mm female taper Instrument shelf Overhead monitoring equipment shelf Lower shelf Drawer unit. For Superior Air Products Ltd. Patchat Cylinder Key. For the Blease Front Line Anaesthetic Machines built in standards were as under :- Oxygen supply pressure failure warning devices. Whistle to provide audible Indication of O2 supply pressure failure. Oxygen alarm reservoir with automatic multi-gas shut off in the event of O2 failure. Air entertainment valve to allow the patient access to ambient room air. Preferential oxygen flowmeter. Touch coded oxygen flow control knob. Height indexed flowmeter tubes. Colour coded gauges for cylinders and pipelines. Emergency Oxygen flush. Common gas outlet over pressure protection. Simplex rota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but these are trolley that contain only furnishing and no mechanical equipment. The products before us contained more than items of furniture. They were machines for ready use only requiring consumables and other items for immediate use in the operation theatre. In this regard, we may refer to the observations of the Bombay High Court in the case of Kulkarni Black and Decker Ltd. v. Union of India - 1992 (57) E.L.T. 401 (Bombay). Extracts from the decision of the Madras High Court in the case of Tawakkal Tanning Company - 1983 (54) STC 113 (Madras) are also given below :- (page 115). "The learned counsel for the assessee contends that the Tribunal is in error in rejecting the affidavits as not admissible in evidence and that in certain circumstances, the affidavits also can be taken as substantial evidence in the absence of the necessary documents. We find from the order of the Tribunal that they have not rejected the affidavits as not admissible in evidence. What they have stated is that they are not inclined to accept the affidavits as fully supporting the claim of the assessee for exemption in the absence of other relevant documents. Therefore, the Tribunal has not proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o justify the claim of duty beyond the period of six months was a question of fact. The Hon'ble Supreme Court had further observed that the fact that the Department visited the factory of the appellants and they have been aware of the production of goods in question were not reason for the appellants not to truely and properly describe those goods. It was further added that having come to the conclusion that there was deliberate suppression of wrong statement, it follows automatically that the Tribunal was justified in upholding the imposition of penalty. The appellants had not declared the goods in question correctly. The adjudicating authority after analysing the facts on record, had held that the appellants had failed to properly declare the product which they had manufactured in their factory and that amounts to suppression of facts. When no classification list was filed in respect of goods, it was tantamount to suppression of facts (refer Kiran Spinning Mills v. C.C.E., Bombay-II - 1987 (30) E.L.T. 550 (Tribunal). Thus, the allegation of suppression of facts is established against the appellants and the extended period of limitation has been correctly invoked. 17. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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