P.V. Subba Rao ORDER
P.V. Subba Rao, Member (T)
1. This appeal has been filed by M/s. Confident Dental Equipment Limited, Bangalore1 assailing the order in appeal dated 9.10.20092 passed by the Commissioner of Central Excise (Appeals), Bangalore-II whereby the order in original dated 26.5.2008 passed by the Additional Commissioner of Central Excise was upheld and the appellant's appeal was rejected. The factual matrix which led to the issue of the impugned order is as follows.
2. The appellant is a manufacturer of medical and dental equipment and furniture and is registered with Central Excise department. Its records were audited by the departmental audit party who noticed that the following products were classified by the appellant as medical appliances:
(i) Autoclave;
(ii) Glass Bead Sterilizer;
(iii) Steam Clave and
(iv) Hot Air Sterilizer.
The appellant classified these products as medical equipment under Central Excise Tariff Heading 9018.00 (up to February, 2005) and 98184900 (from March, 2005 onwards) and discharged duty @ 4% for the period August 2002 to February 2003 and 8% for the period March 2003 to March 2007 by availing benefit of Notification No. 10/2002-CE dated 1.3.2002 (Sl. No. 43) and Notification No. 10/2003-CE dated 1.3.2003 (Sl. No. 43) respectively. Audit officers felt that the above goods do not qualify as medical equipment and should be classifiable under Central Excise Tariff Heading 8419.10 (up to February, 2005) and 8419.2010 (from March, 2005). Accordingly, a show cause notice was issued to the appellant proposing to re-classify the above four goods and assess them to duty @ 16% ad valorem as applicable. It was also alleged in the show cause notice that the assessee had suppressed the fact of manufacture and clearance of these products from the Department with an intention to evade payment of Central Excise duty. Accordingly, the differential duty was demanded invoking the extended period of limitation for the period August 2002 to March 2007 by the show cause notice dated 30 August, 2007 and invoking the extended period of limitation under the proviso to Section 11A.
3. Interest was also demanded at the appropriate rate under Section 11AB. It was also proposed to impose a penalty on them under Section 11AC read with Rule 25 of the Central Excise Rules, 2002.
4. The appellant contested the demand both on merits and on limitation. The Additional Commissioner confirmed the demands as proposed in the show cause notice along with interest and imposed a penalty under Section 11AC equivalent to the amount of duty.
5. Aggrieved, the appellant appealed to the Commissioner (Appeals) who in the impugned order, upheld the order of the Additional Commissioner and rejected the appeal. Hence, this appeal.
6. Learned Counsel for the appellant submits that the following three questions need to be addressed in this case:
(i) Whether the Autoclaves manufactured by the appellant are classifiable under Central Excise Tariff Heading 841910 (up to February 2005) and 84192010 (from March 2005) as held in the impugned order or under 901800 (up to February, 2005) and 90184900 (from March, 2005) as claimed by the appellant;
(ii) whether the Glass Bead Sterilizer, Steam Clave and Hot Air Sterilizer manufactured by the appellant are classifiable under 841910 (up to February, 2005) and 84192010 (from March, 2005); or under 9018 as claimed by the appellant;
(iii) whether extended period of limitation is invocable under the proviso to Section 11A for raising the demand and penalty is also imposab........