TaxTMI 
TaxTMI 
2001 (12) TMI 441
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....e under chapter heading 84.79. Both the tariff headings are reproduced 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....
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....dismissed mainly under Section 35F, therefore the matters needs to be remanded to the first Appellate Authority for an indepth consideration on the merits of the case in the light of our above observations. Ordered accordingly. The 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 mod....
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.... designed and sold only as a "wet and dry vacuum cleaner" for industrial use and it cannot be considered as a machine for domestic use. 4. We have heard Shri P.C. Anand, Chartered Accountant and Shri C. Mani, ld. DR for revenue. 5. 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 ma....
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....duced any evidence to show that the item is marketed for domestic purpose and it is a domestic vacuum cleaner. Therefore, the Revenue's plea classifying the item which is being used for industrial purpose under a kind commonly used for domestic purpose 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. ....