Customs, Excise and Gold Tribunal - Delhi
Navinchandra Premji And Company vs Collector Of Customs on 29 June, 1989
Equivalent citations: 1989(24)ECR358(TRI.-DELHI), 1989(43)ELT644(TRI-DEL)
ORDER G.A. Brahma Deva, Member (J)
1. This appeal arises out of and is directed against the Order-in-Original No. 119/88 dated 30-8-1988 passed by the Additional Collector of Customs, New Delhi.
2. The appellant Company imported 5 consignments of disposable and sterile needles of "Misawa" make in the month of January, 1988 and sought for clearance through bills of entry as "Veni puncture control system needles (Haemodialysers and accessories/spares" as it is duty free under Notification No.208/81 dated 22-9-1981 as amended vide Serial NO. 8 (XXVI) and also under OGL vide appendix-6 list 2 Item No. 16, as haema filteration instrument/homodylisers and Accessories/spares thereof of FTC Policy 1985-88. On examination by the Department, the goods imported by the Appellant Company were found to be of disposable needles, 10,000 pieces per carton/box and on the marking of these boxes were found to be as follows :-
Type-lues single use only.
Make-Misawa
Description: Disposable needles sterilised by
ethylene oxide gas, Non toxic
pirozen free.
Name of Supplier: Misawa Medical Industry Co. Ltd.,
Japan.
Sizes: 24Gx1", 26Gx1/2", 25Gx1", & 20G to 23Gxl". etc.
According to the Department, the appellants misdeclared the goods with a view to clear the goods under OGL as also to claim examination under Notification No. 208/81 dated 29-8-1981 as the imported goods as per description given on L/C is different from the description of goods given on the bill of entry.
3. A show cause notice was issued calling upon them to show cause as to why the action should not be taken under the provisions of Import & Export Control, 1955 and why the goods should not be confiscated under Section 111(1) & 111 (m) of the Customs Act for importing the goods without proper licence and for misdeclaration and to levy penalty under Section 112(a) of the Customs Act, 1962. This show cause notice was duly answered by the appellants contending that the imported needles having multiple applications and these types of needles are used in Haemo dialysers & therefore, considered as veni puncture control system needles or for femoral haemo dialyser set and alternatively claimed exemption as it was covered under OGL Appendix & serial No. 48 as these needles meant for dental purposes. Additional Collector of Customs who adjudicated the case held that the goods did not fall under any of the items mentioned above and not entitled for exemption and accordingly, he ordered for confiscation of the goods and gave option to redeem the goods on payment of fine for Rs. 1,50,000/- and a penalty of Rs. 25,000/- was also imposed.
4. We have heard Shri L.U. Balani with Shri R.R. Gupta, Advocates for the appellants and Shri Ramchandani, S.D.R. for the respondent.
5. Shri Balani, the learned counsel for the appellants submitted that imported goods, viz., Disposable and sterile needles have intravenous application in , Haemodialysis and as such, they are part of the veni puncture control system as appearing in serial No. 8 (XXVI) of Notification No. 208/81 dated 22-9-1981 and as such, benefit of exemption cannot be denied. Further he submitted that these needles find use in Femoral Haemo Dialysers as they answer the description "Accessories/spares of Haemodialysers" appearing in Item No. 16 of List 2 of Appendix 6 of Import Policy 1985-88 and therefore, qualify for import under the OGL. Further he submitted that the said needles also find dental application and as such also qualify for import as Disposable and Sterile needles used in Disposable Syringes vide Item No. 48 of List 6 of Appendix 6 of the said Import Policy. He showed us a sample of the product and stated that it is a needle which can be used in veni puncture system as well as dental application and the Adjudicating authority erred in observing that description given in the catalogue is not tallying with the sample. Further, he urged that it was the practice to allow such needle in the past clearance and in view of this past clearance and specific inclusion of the very item "hypodermic needles for Dental Cartridge system-disposable" under Item 50 of List 6 Appendix 6 of ITC Policy 1988-91. Hence, the goods should be cleared. In support of his argument, he cited a decision of Gujarat State Export Corporation Ltd. and Anr. v. Union of India and Anr. [1984 (17) E.L.T. 50 (Bom.)] and Menon Associates v. Collector of Customs, Bombay [1988 (34) E.L.T. 367 (Tribunal)].
6. On the other hand while countering the arguments, the learned S.D.R. Shri R.M. Ramchandani, submitted that the imported needles are altogether different from needles used in veni puncture control system and only the needles which have intravenous application as specified in Appendix 6 list under life savings equipment for import under O.G.L. and Item XXVI veni puncture control system and needles under Note 95 are entitled to exemption and clearance in view of the Notification No. 208/81. He too showed us a sample of needle with veni puncture control system with the specification and literature and emphasised that only that type of needle can be used in veni puncture control system which are longer in length and of thick bore diameter to facilitate easy flow of blood intravenus fluids is required. The size of the imported needle is very small and totally unsuitable for the purpose of veni puncture control system and it can be used only as intramuscular injection. He justified the order of the Adjudicating Authority as the findings are based on Medical Catalogue and literature and in the absence of any literature produced by the appellant regarding special application of the imported needle either for the purpose haemodialyser or for dental application.
7. We have heard rival submissions and perused the records.
8. The point to be considered in this case is whether the imported goods viz., Disposable needles are entitled to the benefit of O.G.L. concession under Import Policy and duty exemption under Notification NO. 208/81-Cus.
9. (i). Needle to be used in veni puncture control system should be intravenous Canula. Canula means a needle. The intravenous needle is to puncture the veins and it is so designed to allow the cathetor to pass through the punctured veins and remain there for the introduction of fluid in or for withdrawing it from the body cavity.
(ii). In case of needles used for veni puncture (i.e. puncture of veins), they should have longer length and thicker in bore diameter in order to facilitate easy flow of blood or intravenus fluids. The catalogue of Terumo page No. 62 gives idea for a needle used for venipuncture where it shows that the 13(G) bore diameter is more as compared to the hypodermic needles which the importer has imported. In other words the importer has imported the needles ranging from 20G to 26G in length 1/2" to 1", whereas the needles used for veni puncture are having bigger diamension.
(iii). Needles used for veni puncture also reveals that in respect of one type, they have thicker bore with two cannualas for colaterol circulation either of blood or of intravenus fluids or of both. Whereas in respect of another type of such needles, they have got a thicker bore with a stopper which stops at the level of skin veni puncture with a long tubular body which is more .- than 9" and is connected to intravenous set. It has also been seen that the stopper which is shown just above the needle to prevent insertion of the plastic tube inside the skin secures the needle in position. The stopper which is in a strap shape is always fixed on to the skin with adhesive tape as explained above and the plastic canula (tube) is connected to intravenous fluid set.
(iv). The needles which have been imported conform to the figures which are illustrated at page No. 123 of Terumo Catalogue (photocopy enclosed) showing injection needles of gauges from 18 to 27. The said terumo catalogue page No. 123 indicates that needles of 18G to 27G are mainly used for giving injections and that from 18G to 25G, the needles are used for intramuscular injections whereas 26G to 27G are used for insulin injections.
10. In view of the detailed description and distinction in the connected catalogue and concerning literature and in the absence of any authenticated testimony or certificate issued by an expert in respect of the imported needle either for use in veni puncture control system or of specific use in dental application, we feel that the Department was justified in taking action by rejecting the claim of the appellants.
11. However, after taking all the facts and circumstances into account as the imported goods are nothing but needles used for the purposes of injecting drugs and subsequently these very items are specifically inserted under Serial No. 50, List-VI Appendix VI of O.G.L. under I.T.C. Policy 1988-91, we strongly feel that this is a case where lenient view has to be taken regarding redemption fine. Accordingly, we reduce redemption fine to Rs. 1,00,000/- as against Rs. 1,50,000/-.
12. In the view the have taken, we uphold the inpugned order of the Additional Collector of Customs, New Delhi and dismiss the appeal except to the extent of giving the aforesaid relief.