Custom, Excise & Service Tax Tribunal
Commissioner Of Customs (Airport) vs Vishal Surgical Equipment Co. (P) Ltd on 28 January, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH
CHENNAI
Appeal No.C/SO/194/2005 & C/277/2005
[Arising out of Order-in-Appeal No.C.Cus.No.87/2005 dt. 14.2.2005 passed by the Commissioner of Customs Excise (Appeals), Chennai]
Commissioner of Customs (Airport)
Chennai Appellant
Versus
Vishal Surgical Equipment Co. (P) Ltd. Respondent
Appearance:
Shri Veerabadra Reddy, JC (AR) For the Appellant Shri Ajay Kumar Gupta, Consultant For the Respondent CORAM : Honble Shri R. Periasami, Technical Member Honble Shri P.K. Choudhary, Judicial Member Date of Hearing/Decision : 28.1.2016 FINAL ORDER No.40142/2016 Per R. Periasami Revenue filed appeal against Commissioner(Appeals) order dt. 14.2.2015 with application for stay of operation of the order. Since the appeal is of the year 2005, we consider it appropriate to take up the appeal itself for disposal. Appeal is taken up for hearing after disposing the stay petition filed by Revenue.
2. The respondents imported Bill of Entry No.787515 dt. 30.12.2004 for import of medical equipment declaring the goods as "M2A Capsule Endoscopy Given Diagnostic System (Wireless Endoscopy) falling under Customs Tariff Heading 90189044 and CETH 901800 along with spares and accessories claiming the benefit of Customs Notification No.21/2002 under List 37 of S.No.363A of the Table vide Item No.82 and CE Notification No.6/2002 at Sl.No.267A. The adjudicating authority denied the benefit of the notification on the ground that the imported equipments M2A Capsule Endoscopy Given Diagnostic System (Wireless Endoscopy) is not covered under Item No.82 of the List. On appeal by the respondent, the Commissioner (Appeals) in her impugned order allowed the benefit of exemption notification. Aggrieved by this, Revenue filed the present appeal.
3. Heard both sides. Ld. A.R submits that the imported equipment is a Wireless Gastro Endoscopy functioning based on the capsule containing video camera which is tracked by wireless whereas the notification allows only for fibre optic. He relies the following decisions :
(1) CCE New Delhi Vs Hari Chand Shri Gopal
2010 (260) ELT 3 (SC)
(2) Nestle India Ltd. Vs CCE Goa
2008 (227) ELT 631 (Ti.-Mumbai)
4. On the other hand, Ld. Consultant appearing for the respondents reiterated the findings of Commissioner (Appeals) and also produced copies of literature, catalogue and relevant journals of Gasrointestinal Endoscopy and also extracts from the book of "Practical Gasrointestinal Endoscopy-The Fundamentals". He drew our attention to earlier history of the notification where under Notification No.20/99 dt. 28.2.1999 these goods were listed under List No.23 item No.23, 25 (S.No.275 of the Table). Item No.23 covers "Video Laryngo Bronchoscope and Video Oesophago Gastroscope". Item No.25 covers "Fibroptic Flexible Oesophago Gastroscope" which is parallel to the present notification No.21/2002 at Item 82 of the List 37. Both the entries are one but still retained both Fibroptic Flexible Oesophago Gastroscope. He submits that as per the changed notification it allows "Video Oesophago Gastroscope". The video can be either fibre or without wireless. He also submits that Commissioner (Appeals) has given a clear finding at page 5 and dealt the issue in detail.
5. After hearing both sides, we find that the short issue is on admissibility of Notification no.21/2002 List 37 Sl.No.363A of the Table vide Item No.82. We find that Commissioner (Appeals) has dealt the issue in detail in her order at page 5. On perusal of the product catalogue, literature and the extracts of journals of Gastrointestinal Endoscopy, we find that Video Capsule Endoscopy which is advanced Endoscopic System which provides visualization of gastrointestinal track by transmitting images wirelessly from a disposable capsule with data recorder which is worn by the patient in the form of belt which is again connected to computer system when compared to conventional fibre optic endoscopy which is connected to fibre optic cables. Item No.82 of List 37 at Sl.No.363 of the Table appended to Notification No.21/2002-Customs is reproduced as under :-
"(82) Fibre optic endoscopes, including, Paediatric resectoscope/audit resectoscope, Peritoneoscopes, Arthoscope, Microlaryngoscope, Fibreoptic Flexible Laryngo Brochoscope, Video Laryngo Brochoscope and Video Oesophago Gastroscope, Stroboscope, Fibreoptic Flexible Oesophago Gastroscope."
6. As seen from the above, it covers both "Fibreoptic Flexible Oesophago Gastroscope" and also "Video Oesophago Gastroscope". The equipment which is imported by the respondent is fully automatic (wireless) used for gastro endoscopy from mouth to intestine. We find that the description used in the entry is "Video Oesophago Gastroscope". Revenue's contention that the word "wireless" is not mentioned in the notification is not justified. What is allowed in the entry Sl.No.82 is "Video Oesophagus Gastroscope". As per the technical definition "Gastro Intestinal Video Endoscope", it is nothing but Gastroscope using Video technology. The present equipment is based on wireless capsule and which covers not only throat but also entire gastro intestinal tract. Therefore, we hold that equipment in dispute is rightly covered under Sl.No.82 under the description "Video Oesophago Gastroscope" and we do not find any infirmity in the findings of the impugned order. Accordingly, the impugned OIA is upheld and the Revenue's appeal is rejected. Stay application gets disposed.
(Dictated and pronounced in open court)
(P.K. CHOUDHARY) (R. PERIASAMI)
JUDICIAL MEMBER TECHNICAL MEMBER
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