Custom, Excise & Service Tax Tribunal
M/S. P.Perichi Gounder Memorial ... vs Cc (Sea), Chennai-Ii on 6 September, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
C/41616/2017
(Arising out of Order-in-Appeal C. Cus. No. 393/2017 dated 24.05.2017 passed by the Commissioner of Customs (Appeals-II), Chennai)
M/s. P.Perichi Gounder Memorial Charitable Trust : Appellant
Vs.
CC (Sea), Chennai-II : Respondent
Appearance Shri Dr. S. Krishnanandh, Advocate, for the Appellant Shri B. Balamurugan, AC (AR) for the Respondent CORAM Honble Ms. Sulekha Beevi C.S., Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Date of Hearing / Decision: 06.09.2017 FINAL ORDER No. 41997/2017 Per: B. Ravichandran The appeal is against the order dated 24.05.2017 of the Commissioner of Customs (Appeals-II), Chennai. The appellant is a charitable trust. They filed Bill of Entry dated 24.02.2017 for import and clearance of used dialysis machine with supplies and accessories. The goods were examined and the customs raised objection for clearance of the goods as in terms of Schedule VI under Notification dated 04.04.2016 issued by the Ministry of Environment, Forest and Climate Change and in terms of Hazardous and other Wastes (Management and Transboundary Movement) Rules, 2016, the item imported will fall under the entry B1110 and is prohibited for import. The original authority as well as the appellate authority upheld such view and ordered confiscation of the imported dialysis machine valued at Rs.19.07 lakhs. Permission to re-export was granted by redemption on payment of fine of Rs.2,00,000/- under Section 125 of the Customs Act, 1962 and a penalty of Rs. 25,000/- under Section 112 (a) of the Act.
2. Ld. Counsel appearing for the importer-appellant submitted that the imported items have been examined by the qualified Chartered Engineer whose certificate is available on the record. The certificate issued clearly shows that the imported item is not a waste and it has got a residual life of 8 to 10 years. He further submitted that though the imported item may figure under the Schedule-VI, entry B1110, there is no notification by the Ministry of Health to stipulate the dialysis machine as a Critical Care Medical Equipment. The appellant imported the said machine for actual use and the Ld. Counsel pleaded that similar such imports have been regularly allowed though with redemption fine and some penalty. The authorities now changed the practice in the appellants case and confiscated the goods absolutely. He states that even if there is a violation, imported goods were allowed for clearance with an option to redeem on nominal fine and penalty considering the nature and use of the item and status of the importer as charitable organisation.
3. The Ld. AR opposed the appeal. He submitted that the entry B1110 states that used Critical Care Medical Equipment for reuse are prohibited for import. Admittedly, the appellant is not having any authorization or license for import of used equipment. The lower authorities examined the legal position and passed orders which cannot be contested either on facts or on law. Regarding Notification not being issued by the Ministry of Health on the status of dialysis machine, the Ld. AR drew our attention to para 3 (9) of the Notification dated 04.04.2016 of the Ministry of Environment, Forest and Climate Change, which defines the Critical Care Medical Equipment as life saving equipment and include such equipment as specified by the Ministry of Health & Family from time to time. He submitted that Critical Care Medical Equipment which are life saving equipment as mentioned in entry B1110 of Schedule VI are prohibited for import for re-use. The Ministry of Health may issue notification to include any other equipment in such category. As such, even without any separate notification, if he equipment under import is a life saving equipment then importation is prohibited, if it is meant for reuse. Regarding the clearance of such equipment on redemption in respect of other imports he submitted that the facts of each case are to be checked up and even if such imports are not properly examined cannot support the appellants case.
4. Heard both sides and perused the appeal records.
5. Admitted facts are that the appellants imported used dialysis machine. They did not have any import license. Their claim is that the goods should be allowed to be redeemed for use with redemption fine and penalty. They heavily rely on similar clearances of other importers. While they claim on uniform practice can be considered, we note that the facts of the present case are to be addressed first. Admittedly, used Critical Care Medical Equipment for reuse are put under prohibited category of import. This dispute boils down to the fact that whether the dialysis machine imported by the appellant will fall under life saving equipment as defined under para-3 (9) of the Notification dated 04.04.2016 of the Ministry of Environment, Forest and Climate Change. The impugned order clearly records no expert opinion was taken in the present case. However it proceeds to hold that the equipment is the life saving equipment. It would be advisable and proper to obtain expert opinion instead of presuming or inferring the scope of the equipment. As such, we find that based on the above admitted facts, it is necessary to take an expert opinion before contesting scope of prohibition and also possibility of redeeming such goods for home consumption. The practice followed in respect of other consignments of similar goods is also to be examined.
6. Accordingly, we set aside the impugned order and direct the original assessing authority to obtain an expert opinion and to examine such opinion along with the claim of the appellant regarding permission granted to similarly placed imports for clearance of identical goods by Chennai Customs on fine and penalty. Since the consignment is live and pending clearance, it is preferable for the original authority to proceed with the completion of re-adjudication at the earliest and in any case not later than one month from today. The appellant shall be given adequate opportunity before a fresh decision is taken in this case.
7. The appeal is allowed by way of remand.
(Order dictated and pronounced in the open court)
(B. RAVICHANDRAN) (SULEKHA BEEVI C.S.)
Member (Technical) Member (Judicial)
BB
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