Per Mr. VASA SESHAGIRI RAO

The present appeal has been filed by the Revenue against the Order-in-Appeal No. 710/2015 dated 30.08.2015 passed by the Commissioner of Customs (Appeals-II), Chennai, whereby the benefit of Notification No. 12/2012-Cus. was extended to the respondent and the Order-in-Original confirming demand of duty amounting to Rs.1,74,639/- was set aside. The facts, in brief, are that the respondent imported goods described as “wheel chair for use by physically disabled/handicapped persons (for toileting) with spare parts” and classified the same under CTH 87139090, availing exemption under Notification No. 12/2012-Cus.

1.2 Subsequently, based on audit objection, proceedings were initiated on the ground that the goods were in the nature of commode chairs with wheels and not wheelchairs, and therefore classifiable under CTH 9402, making them ineligible for exemption. The adjudicating authority confirmed the demand and denied the exemption. On appeal, the Commissioner (Appeals) held that the essential character of the goods remained that of a wheelchair used for mobility and that the toileting facility was only an additional feature, thereby allowing the benefit of exemption.

2. Aggrieved by such order, the Department has preferred the present appeal contending that the primary function of the goods is that of a commode chair and not a wheelchair.

3. The Ld. Authorized Representative Ms. Anandalakshmi Ganeshram, appeared for the Revenue. None appeared on behalf of the Respondent.

4.1 The Learned Authorised Departmental Representative for the Revenue supported the findings in the OIO and submitted that the impugned goods are essentially commode chairs and not wheelchairs, and that the presence of wheels is only incidental to facilitate movement. It was contended that the catalogue and product description indicate that the primary purpose of the product is toileting and not mobility, and therefore the goods merit classification under CTH 9402. It was further argued that the exemption notification applies strictly to wheelchairs and cannot be extended to products which are primarily commode chairs with incidental mobility features.

4.2 The Revenue further submitted that the Commissioner (Appeals) erred in placing undue emphasis on the mobility aspect while ignoring the dominant function of the product. It was contended that classification should be determined based on the principal function of the goods and not on ancillary features, and therefore the order of the Commissioner (Appeals) is liable to be set aside.

5.1 Per Contra, none appeared on behalf of the respondent on the final date of hearing despite notice. However, since the Order-in-Appeal is in favour of the respondent, the findings and reasoning contained therein are taken as representing the submissions of the respondent.

5.2 The respondent’s case, as reflected from the records, is that the impugned goods are essentially wheelchairs meant for mobility of physically disabled persons and that the toileting facility is only an additional feature provided for convenience. It is contended that classification cannot be altered merely because an additional facility is provided and that the essential character of the product continues to remain that of a wheelchair. It is further contended that the exemption notification covers wheelchairs for disabled persons and the impugned goods squarely fall within its scope.

6. Upon consideration of the submissions made by the Revenue/appellant and on perusal of the records of the case, including the findings recorded in the impugned Order- in-Appeal, which are taken as representing the position of the respondent, the following issues arise for determination in the present appeal: -

i. Whether the impugned goods are classifiable under CTH 87139090 as wheelchairs or under CTH 9402 as commode chairs?

ii. Whether the impugned goods are eligible for exemption under Notification No. 12/2012-C