TaxTMI 
TaxTMI 
2014 (7) TMI 1071
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....erein is a manufacturer of various items like orthopaedic rehabilitation aids, health care products like heating belt, cooling packs, bandages, walking sticks, etc. and filed annual declaration prescribed for SSI unit. On scrutiny of the final SSI declaration filed by the appellant for the F.Y. 2004-2005 to 2008-2009, the Revenue authorities held that the items 'electric heating belt/cooling packs, bands & bandage' which are declared as orthopedic rehabilitation aids and health products, may not merit classification under Chapter Heading 90211000 of Central Excise Tariff Act, 1985, but would merit classification under CH 90189099. Coming to such conclusion, show cause notices were issued to the appellants. The said show cause notices demanded the differential duty by invoking extended period and also within the normal period. Appellants contested the show cause notices on merit as well as on limitation. The adjudicating authority, after following the due process of law, dropped the demands on various products, confirmed the demand on 'electric heating belts/cooling packs' and bandages on the ground that there was mis-classification on the part of the appellant. The adjudicating aut....
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.... includes one heading 'other electromedical apparatus'. It is his submission that the adjudicating authority has held that since the products manufactured by the appellants are using heating coils, insulation, in-built thermostat and consumes electricity for the purpose of heating, the same would fall under the category of 'other electromedical apparatus' and there being no specific heading, the same are classified under residual entry 'Others'. He submits that such a view of the adjudicating authority is totally inconsistent with the HSN Heading for Chapter 9018 and draws our attention to the said Heading and general explanations. He would also draw our attention to the product that may be covered under orthopaedic appliances, as given in the HSN, he submits that this heading would also include the product manufactured by the appellant. He would subsequently would take us through the meaning of the word 'orthopaedic and orthopaedics' as also how the pain can be relieved as is stated in various dictionaries and articles. He would also submit that the word 'appliances' has been given a meaning in Concise Oxford English Dictionary that it is a device designed to perform a specific ta....
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....ce of filing of declaration cannot be held against the appellant for invoking extended period. 4.3 It is his further submission that as regards the additional grounds of appeal, it is an alternative plea that if the classification of the product heating belt is held to be falling under Chapter Heading 9018, then the rate of duty which has been applied by the adjudicating authority is incorrect as during the relevant period, the effective rate of duty on the said tariff heading was notified by Notification No.10/2002-CE, 10/2002-CE, 10/2003-CE, 10/2006-CE, and 12/2012-CE. 5. Ld. Departmental Representative, while defending the impugned order, would draw our attention to the findings recorded by the adjudicating authority in respect of classification of the heating belts. He would submit that the orthopedic appliances have been defined under Chapter Note itself, so that there can be no ambiguity. It is also his submission that once such a definition exists in the Chapter Note itself, there is no need to rely upon any other definition or expert opinion. He would then draw our attention to the definition given in Chapter Note 6 of Chapter 90 as to were the orthopaedic appli....
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.... in the case of this Bench in the case of DLF Ltd in Order No .A/10148/2014, dt.06.02.2014, has categorically held that the Chapter Note of Chapter has to be read for the purpose of classification of product. 6. Ld.Counsel, in rejoinder, would submit that the issue involved in the case of Prosoya Industries Ltd (supra) is totally different in as much as the said product therein as classified, has various chemicals packed in plastic container. Hence, the ratio may not be applicable. Ld.Counsel would also rely upon the judgment of the Apex Court in the case of Pradeep Agarbatti - 1997 (96) ELT 219 (SC) and Maharashtra Fur Fabrics Ltd - 2002 (145) ELT 287 (SC) for the proposition that the expression has to take their colour and meaning from the preceding expression by applying principles of ejusdem generic and noscitur a sociis. 7. We have considered the submissions made at length by both sides and perused the records. 8. The issue involved in this case is regarding the classification of the product 'orthopaedic heating belts' and also the demand on the bandages which were bought out by the appellant. 9. Revenue authorities want to classify the product orthopaedic heating ....
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....thopaedic appliances include footwear and special insoles designed to correct orthopaedic conditions, provided that they are either (1) made to measure, or (2) mass produced, presented singly and not in pairs and designed to fit either foot equally. 12. Revenue is relying upon the Chapter Note 6(i) for holding that the classification of orthopaedic heating belts is incorrect. It is the claim of the Revenue that the product would fall under the category of 'other electro-medical apparatus' under Chapter 9018. 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 sw....
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....ese cases, Revenue has not produced any contrary expert opinion as to the use of 'orthopaedic heating belts'. iv) Fourthly, it is to be noted that Revenue's classification of the product under Chapter Heading 9018 also seems to be incorrect as the said Chapter heading indicate 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) ELECTRO-MEDICAL 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 des....
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.... employ radiations within, or more generally just outside, the visible spectrum (infra-red, ultra-violet) for treatment of certain diseases or for diagnostic purposes (special lighting to reveal skin diseases). This apparatus generally incorporates lamps, though infra-red ray apparatus may be fitted with heating resistances or heating panels with reflectors. (8) Artificial incubators for babies. Basically these consist of a transparent cubicle of plastics, electrical heating equipment, safety and warning devices, and oxygen and air filtering and regulating apparatus. In most cases they are mounted on a trolley 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 p....
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....le protectors or devices designed to reduce pressure on certain parts of the foot, these protectors etc., being classified in heading 39.26 if made of plastics, or in heading 40.14 if of cellular rubber fixed on gauze with adhesive plaster, nor mass-produced footwear the inner soles of which have been simply arched to alleviate flat-footedness, which are not regarded as orthopaedic footwear (Chapter 64). This group also covers orthopaedic appliances for animals, for example, hernia trusses or straps; leg or foot fixation apparatus; 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. 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 supp....
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....n 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 workers 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 undertaking further activity in his factory premises on the bandages which are received from the job worker in duly packed form. In the absence 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. 15. As regards the question of limitation, we do find that the appellant has been filing declaration with the authorities from 2004. It is also noticed from the copies of various declarations produced before us that the appellant has been filing the manufac....