TMI Blog2001 (12) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... below :- 85.09 : Electro-mechanical domestic appliances with self-contained electric motor 84.79 : Machines and mechanical appliances having individual functions, not specified or included elsewhere in this Chapter. 2. Appellants contend that the item is not a domestic vacuum but it is only an industrial vacuum cleaner designed for heavy duty work. They also refer to their invoices filed before the Tribunal showing that the sale has been made only to industrial factories and even the write up manual clearly discloses that it is meant only for industrial use and not for domestic purpose. They contend that the matter had been remanded once by the Tribunal wherein the Tribunal while remanding the matter had clearly indicated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he stay application and the appeal is therefore disposed of in the above term by way of remand to the Commissioner (Appeals) who shall give a hearing to the appellants and then proceed to pass a speaking order on merits. 3. The appellants also referred to Serial No. 29 of Section XVI under Heading 84.79 on page 1427 of explanatory notes which clearly includes industrial vacuum cleaner under 84.79 which is parimateria to the claim made by them. They also refer to the technical details of the industrial model vacuum cleaner and contend that it is a heavy duty one and marketed and used only for industrial purposes and cannot be considered as for domestic purpose. It is further contended that sub-heading 8509.00 under which the department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On careful consideration of the submissions and on perusal of the evidence placed before us, we notice from the invoices issued by the appellants that the item is not traded and sold to all industrial units and not for domestic purpose. The manual of the item alongwith the photograph clearly shows that the item is a heavy duty machinery being used in various factories. The photograph clearly discloses about the use of the item in various factories for cleaning machineries etc. The weight of the machinery also is more than 20 Kgs. And therefore it is very clear that the item is not the one which is used for domestic purposes. For the purpose of classification even HSN explanatory notes are parimateria and are required to be applied in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Heading 85.09 is totally unjustified. Further, Chapter Note (3) of Chapter 85 itself clearly lays down that Heading 85.09 covers only Electro-mechanical machines of the kind commonly used for domestic purposes : (a) Vacuum cleaners, floor polishers, food grinders and mixers, and fruit or vegetable juice extractors, of any weight; (b) Other machines provided the weight of such machines does not exceed 20 kgs. 7. Therefore, the item in question, in order to fall within note 3(a) as held by the lower authorities, it has to be initially of a kind commonly used for domestic purposes. In view of the fact that the item is not the one used for domestic purposes, therefore even in terms of note (3), the item cannot be classif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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