TaxTMI 
TaxTMI 
2017 (5) TMI 754
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....9018 90 99 as "other Electro-Medical Apparatus/Appliances, and Bandages" under Tariff item No.3005 90 40 of Central Excise Tariff Act, 1985 chargeable to duty. (iii) The Department issued two show cause notices dated 22.6.2012 and 14.3.2013 demanding duty of Rs. 69,02,872/- and Rs. 26,32,950/-, totalling to Rs. 95,35,822/-. (iv) The impugned order confirmed the above demands along with interest and equivalent penalties. (v) Hence the present appeal before the Tribunal. 3. With the background of the above facts, both sides represented by Shri H.P. Kanade, ld. Advocate for the appellants and Shri Sameer Chitkara, ld. A.R. for the Revenue have been heard. 4.1 The matter concerns with the classification of the item namely Orthopaedic Heating Pads/Belts/Bands. The appellant wants classification under Tariff Item 9021 10 00 of the First Schedule to the Central Excise Tariff Act, 1985, whereas the Department's stand is that Heating Belts deserve classification under Tariff Item No.9018 90 99 of the First Schedule to the Central Excise Tariff Act, 1985, as "other electro-medical apparatus appliances", and Bandages under Tariff Item No.3005 90 40 of Central Excise Tariff Act. ....
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.... body, would be an incorrect interpretation for the classification of the product like "orthopaedic heating belts". (iii) Thirdly, we find that the practicing orthopaedicians in the medical fraternity had given certificates wherein it is indicated that electric heating belts manufactured by the appellant are being recommended by them for the treatment of the swelling, pains and also relief thereof. The adjudicating authority has brushed aside these certificates as inconclusive and need not be relied upon the Chapter Note 6 specifically excludes the product "orthopaedic heating belts" and hence it does not merit classification under Chapter Note No. 9021; in our considered view, this is an incorrect finding inasmuch as in medical field, the use of such product may be ascertained by the experts who are using or recommending such products. The law as to reliance for classification of any product based upon the end-use has been settled by the Apex Court in the cases of C.C.E., Mumbai v. M/s. Ciens Laboratories, Mumbai - 2013 (295) E.L.T. 3 (S.C.) and M/s. Alpine Industries v. Collr. C.E., New Delhi - 2003 (152) E.L.T. 16 (S.C.). It is also to be noted that in these cases, Revenue has....
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....eumatism, neuralgia, dental ailments). These operate by the use of high-frequency (shortwave, ultrasonic, ultra shortwave, etc.) currents, and employ electrodes in a variety of forms (e.g., plates, rings, tubes). (5) Electric shock treatment apparatus to treat mental or nervous diseases. (6) Electro-surgical apparatus. These utilize high-frequency electric currents, the needle, probe, etc., forming one of the electrodes. They can be employed to cut tissues (electrocutting) with a lancet (electric lancet), or to coagulate the blood (electrocoagulation). Certain combined instruments may, by the use of control pedals, be made to act interchangeably as electrocutters or electrocoagulators. (7) Actinotherapy apparatus. These 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, el....
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...., plastics, etc.) ; or (c) The presence of reinforced parts, rigid pieces of fabric or bands of various widths. The special design of these articles for a particular orthopaedic purpose distinguishes them from ordinary corsets and belts, whether or not the latter also serve to support or hold. Pre-natal, maternity or similar belts are excluded (heading 62.12). (12) Orthopaedic suspenders (other than simple suspenders of knitted, netted or crocheted materials, etc.) This group also includes crutches and crutch-sticks. [It should, however, be noted that ordinary walking-sticks, even if specially made for invalids, are excluded (heading 66.02)]. The heading does not include stockings for various veins (Chapter 61), simple 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 anim....
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....ing No.9018 "other medical apparatus". It is also settled law that when any product merits the classification in two Chapter heading numbers, the interpretative Rule 3C talks about that the last heading which is under consideration would be an appropriate heading. We have already recorded in our finding that Chapter Heading 9021 is more preferable as being specific heading and we take support from these interpretative rules to hold that classification as done by the assessee under Chapter Heading No. 9021 is correct. 4.3 Further, in the case of other product namely, Bandages where the Department's stand is that the item is classifiable under Tariff Entry No.3005 90 40 of Central Excise Tariff and is chargeable to duty. On the other hand, the appellant's stand is that they are not manufacturing such bandages but are trading in the same in the ordinary course of resale trade; they get the said bandages under the brand name, duty packed in unit pack and wholesale pack, manufactured from various manufacturers, who clear the same on payment of appropriate duty applicable to them under Tariff Item 3005 90 40. The appellant's contention is that since they do not manufacture ....