TMI Blog2017 (5) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... ant'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. - Central Excise Appeal No.13949 of 2013-DB - A/10956/2017 - Dated:- 12-5-2017 - Dr. D.M. Misra, Member (Judicial) And Mr. Ashok K. Arya, Member (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court in the case of C.C.E. vs. Ascent Meditech Ltd. - 2015 (320) ELT A281 (SC) . The Hon ble Supreme Court dismissed the Department's appeal against the above decision of the Tribunal saying that the appeals being devoid of any merit, are liable to be dismissed and, are dismissed accordingly . 4.2 The Tribunal in the decision in the Appellant's own case mentioned above has observed as under: 13. The claim of the Revenue is incorrect and not supported by any of the reasoning by the adjudicating authority for more than one reason :- (i) Firstly, there is no dispute that the products which are manufactured by the appellant i.e. heating belts are marketed and cleared as orthopaedic heating belts and the said product is recommended for relief from swelling pain, etc. We have perused the packages of product as produced before us as also gone through the literature as indicated on the product package, which indicates that the said product is marketed for relief from swelling, pain on various parts of the body. The reliance placed by the adjudicating authority on Chapter Note 6(i) of Chapter 90 seems to be misplaced as the said chapter note specifically talks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be incorrect as the said Chapter heading indicates that it is for instruments and appliances used for the purpose of diagnosis as the phrase other medical apparatus is appearing in sub-heading after various instruments which are used for the purpose of diagnosis. We find that our this view is fortified by explanatory note to HSN of Chapter 9018 wherein it is indicated as under :- (IV) ELECTROMEDICAL APPARATUS This heading also covers electromedical apparatus for preventive, curative or diagnostic purposes, other than X-ray, etc., apparatus of heading 90.22. This group includes : (1) Electro-diagnostic apparatus, which include : (i) Electro-cardiographic (apparatus which, by means of currents produced by contractions of the cardiac muscle, record heart movements as electrocardiograms). (ii) Phonocardiographs (specially designed to register heart noises as phonocardiograms; they may also be used as electrocardiographs). (iii) Cardioscopes (used in conjunction with the two preceding instruments to enable simultaneous observation of cardiograms and phonocardiograms). (iv) Rheocardiographs (electrical apparatus for measuring changes of electric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ley and have built-in baby scales. Cases containing electrodes or other devices for use with the apparatus described above are also included in this group. The explanatory Notes to HSN as reproduced hereinabove specifically talks about as to what would get covered under Chapter Heading No. 9018. We are convinced that the product orthopaedic heating belts would not get covered under electromedical apparatus as has indicated in the HSN under Chapter Heading No.9018. It is settled law that the HSN explanatory note can be relied upon for the purpose of classification of the product under Central Excise Tariff. It is also to be noted that explanatory Note of Chapter Heading 9018 in HSN specifically exclude the orthopaedic appliances; is indicated would fall under Heading No.9021. The very same HSN in the explanatory note for Chapter Heading No.9021 indicate the product which would fall under the Heading Orthopaedic appliances, we reproduce the same :- (I) ORTHOPAEDIC APPLIANCES These are appliances for : (i) Preventing or correcting bodily deformities; or (ii) Supporting or holding organs following an illness or operation. They include : (1) Applia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; special straps and tubes to prevent animals from crib-biting, etc.; prolapsus bands (to retain an organ, rectum, uterus, etc.); horn supports, etc. But it excludes protective devices having the character of articles of ordinary saddlery and harness for animals (e.g. shin pads for horses) (heading 42.01). It can be seen from the above 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 [Sic]. In our considered view, 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 . The word orthopaedic indicates that it is a branch of medical science that deals with prevention or correction of disorders involving locomotor structures of the body, especially skeleton, joints, muscles, facia and other supporting structures such as ligaments and cartilage. The meaning attributed to the word appliances is device designed to perform a specific task. If orthopaedic appliance has to be understood i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question of demand of duty on such bandages does not arise. On this issue also, the Tribunal has given the decision in same case of the Appellant cited above (Ascent Meditech Ltd.) , which has been affirmed by the Hon ble Supreme Court as mentioned earlier. The Tribunal in the said decision in this regard observes as under: 14. As regards the demand of duty on the product Bandages on the ground that the appellant has manufactured and cleared the same from the factory premises, we find that the finding recorded by the adjudicating authority are incorrect. It is seen that the appellant has always been claiming before the adjudicating authority that the Bandages which are received by them and cleared by them are received in completely packed condition from their job workers. The lower authorities have not conducted any further investigation and the packages of bandages as produced before us would indicate that the entire manufacturing activity took place in the job worker's premises. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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