Customs, Excise and Gold Tribunal - Delhi
Karl Storz Endoscopy India (Pvt.) Ltd. vs Cc on 13 August, 1999
Equivalent citations: 2000(88)ECR813(TRI.-DELHI), 2000(123)ELT1071(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. The issue involved in this Appeal filed by M/s. Karl Storz Endoscopy India (P) Ltd. is whether Cold Light Fountain imported by them is exempted wholly from payment of Customs Duty as per Serial 249 of the Table annexed to Notification No. 23/98-Cus. dt. 2.6.1998.
2. The Assistant Commissioner, Customs denied the benefit of Sl. No. 249 of Notification No. 23/98-Cus. to cold light fountain holding that the product manual/literature no where specified that the impugned goods was meant for Tubal occlusion; that as per manual, the cold light fountain was usable in all endoscopic intervention and whereas the benefit under serial No. 249 is only for equipments which are meant for tubal occlusion. On appeal, the Commissioner (Appeals) also denied the benefit of Serial No. 249 of Notification No. 23/98 as the light source had been proved as accessory of endoscopes and not laproscopes or specifically for tublar occlusion; that Notification has given a general entry as endoscope and its accessories and certain specific entries for different specialised endoscopes and if it was the intention to allow benefit to all endoscopes and their accessories, there was no need for differential treatment to different endoscopes.
3.1 Shri V. Swaminathan, Ld. Advocate, submitted that Laproscopic Technique for Tubal sterilization is widely used in family planning programme in India and Laproscope consists, among other items, light source imported by them; that the procedure is as under:
With a help of Veress Needle, the CO2 gas is insufflated at controlled pressure and flow rate into the abdominal cavity to create Pneumoperitonem (distension). Then with the help of trocar and cannula, the abdomen is punctured to pass the telescope to visualise inside structure. The light source and fiber optic light cable is utilised as source of light to be transmitted inside the abdomen to enlighten the dark area for visualisation. Then the ring applicator is loaded with silicon rings and finally put into the abdominal cavity to block the Fallopian Tube called Tubal Sterilization to prevent pregnancy in women.
3.2. The Ld. Advocate, further, submitted that light source being used in Tubal Occlusion procedure is entitled for full exemption from payment of duty; that Sl. No. 249 of the Table annexed to Notification No. 23/98 grants exemption to goods for Tubal Occlusion specified in list 25. Item No. 7 clearly specifies Light source, meaning thereby that any light source used during Laproscopic Procedure is entitled for exemption under the Notification; it does not in Technical terms specify a particular light source in the list as it simply says light source and hence any equipment providing source of light for Tubal Occlusion is automatically covered by the Notification. He also mentioned that Laproscopic is covered under the general term of endoscopic surgery. He finally contended that the Notification nowhere states that the light source should be solely and principally used only in Tubal occlusion; that the multiple application of the impugned product should not debar the benefit of the notification as the product is used in Laproscopic procedure; that had the intention of the Government been not to allow the exemption to light sources which are used in endoscopic applications, nothing prevented them from saying so clearly in the Notification by using the term "solely", "principally", "exclusively", etc. Reliance was placed on the decision in the case of U.O.I. v. TISCO in which it was held that the exemption was granted/when duty paid pig iron was used and the exemption Notification did not say that exemption would not be available if duty paid pig iron is mixed with other non duty paid material. He also relied upon the decision in the case of Escorts Ltd. v. CC 1996 (88) ELT 279 in which it was held that merely because the instrument also carry a function other than those specified in the Notification should be a ground for denying the benefit. Reference was also made to the decision in C.C.E. Bombay v. Cosmos Engineers 1998 (108) ELT 213 (T) wherein it was held that where more than one Notification is available to an assessee, it is open to him to avail of either of them.
4. Countering the arguments, Shri S. Ramanathan, Ld. D.R. reiterated the findings of both the lower authorities and further submitted that a Notification has to be interpreted strictly as held in many cases by the Supreme Court; that the intention of the Government was to provide exemption only for the goods used for family planning and if the use of the product is other than family planning, the benefit of Notification is not available; that the Appellants are traders and not actual users. He also mentioned that serial No. 249 is specific one. He, in this connection, referred to Serial No. 185 which refers to Medical equipment and list No. 14(C) which describes 'Other Medical Equipment' and pointed out that 'Fibre optic endoscopes and accessories' are mentioned therein at serial No. 19 which is a specific entry for endoscopic equipment and its accessories. He finally contended that the Assistant Commissioner rightly held that the appellants would be eligible for concesional rate of duty under Serial No. 185 of the Table annexed to Notfn. No. 23/98-Cus.
5. We have considered the submissions of both the sides. Notification No. 23/98 (Sl. No. 249) provides Nil rate of Customs Duty in respect of "Goods for Tubal Occlusion specified in list 25" falling under Chapter 90 or any other chapter of the Customs Tariff Act. One of the items specified in list 25 to the Notification is "Light Source". According to the Appellants, the light source and fibre optic light cable is utilised as source of light to be transmitted inside the abdomen to enlighten the dark area for visualization. The Assistant Commissioner denied the benefit of serial No. 249 of the Notification No. 23/98 as the Procedure Manual/Literature no where specified that the imported goods was meant for Tubal Occlusion. The Commissioner (Appeals) rejected their appeal as they had not submitted any evidence to prove that light source was specifically can be used with Laproscope or for Tubular occlusion. According to the Pamphlet cold light Fountain Xenon Nova' provides 'high light intensity due to 175 watt Xenox Lamp, thus ideally suitable for applications requiring high illumination levels". The Department has not controverted the claim of the Appellant, by producing any evidence, that the cold light Fountain, imported by the Appellants, is not a light source which can be used for Tubal occlusion. As the list 25 contains Light Source and the impugned imported product is admittedly a light source which is usable in Tubal Occlusion, the benefit of the Notification No. 23/98 (Sl. No. 249) cannot be denied to them. There is force in the contention of the Appellants that list 25 does not provide that the light source should be usable exclusively' for Tubal Occlusion. It is sufficient for the availment of the benefit of serial No. 249 of the Table appended to Notification No. 23/98-Cus. that the impugned item is a "goods for Tubal Occlusion" and is specified in list 25. The Appellants have rightly relied upon the decision in U.O.I v. TISCO, supra. Accordingly, we hold that the benefit of serial No. 249 of Notification 23/98-Cus. is available to the 'cold light fountain' imported by the Appellants and as such the appeal is allowed.