Customs, Excise and Gold Tribunal - Delhi
Unival Surgical Traders vs Collector Of Customs on 23 May, 1988
Equivalent citations: 1989(19)ECC187, 1989(22)ECR220(TRI.-DELHI), 1988(37)ELT58(TRI-DEL)
ORDER G.P. Agarwal, Member (J)
1. Being dissatisfied with the denial of the benefit of Notification No. 208-Cus., dated 22-9-1981 as amended, the appellants have filed the instant appeal. -
2. Factual backdrop: M/s. Unival Surgical Traders, Bombay, appellants herein filed a Bill of Entry No. 370/18-11 -1986 for the clearance of 50,000 sets of goods declared as "Hakko Brand Intravenous Canulae and Tubing for long term use - Infusion Set" claiming release of the goods under Appendix 6 of AM 1985-88 Policy. They also claimed the benefit of Notification No. 208-Cus., dated 22-9-1981 as amended by Notification No. 367/86-Cus., dated 24-6-1986. It appears that the department felt that the imported item Is not 'Intravenous Canulae and Tubing for long term use' but only "Scalp Vein Set' which does not find a mention In the Notification for life saving drugs. As a sequel thereof a show cause notice calling upon the appellants to show cause as to why the goods in question be not confiscated and penalty be not imposed was Issued. In reply the appeltants abjured their guilt and during the adjudication proceedings emphatically contended that "Scalp Vein Sets" are also known as "Butterfly Needles" or "Winged Infusion Sets" and relied upon certain observations made in 'The Principles and Practice of Surgery for Nurses and Allied Professions" written by D.F. Ellison Nash and also in "A Manual of Anaesthetic Techniques" by William J. Pryor & David C.T. Bush. They also produced a copy of letter dated 11 -3-1986 issued by the Deputy Chief Controller of Imports and Exports, New Delhi wherein It was clarified that "Scalp Vein Sets" are covered by Sr. No. 21 of List 2 of Appendix 6 of AM 85-88 which reads "Intravenous Canulae and Tubing for long term use". As regards the daim for exemption It was stated that the Imported goods are exempted from duty since they are "Life Saving Equipments". It was also contended that Notification No. 208/81 -Cus., dated 22-9-1881 was subsequently amended by Notification No. 367/86-Cus., dated 24-6-1986 and Item No. 44 was added under heading "B Life Saving Equipments" under which "Ancillaries for Blood Component Therapy required for the treatment of cancer, namely, Y Type blood solution recipient set...tterfly needle G., Infusion Set..." are also exempted from payment of duty. It was also submitted that the catalogue of SURFLO Brand shows that the Infusion Sets are very useful for anti-cancer agents. In a nutshell It was contended that the goods imported are covered by the OGL and also be exempted from payment of duty under the said Notification. However the Collector of Customs, Cochin who adjudicated the case held the import as authorised giving the benefit of doubt on the basis of letters issued by the Deputy Chief Controller of Imports and Exports clarifying that "Scalp Vein Sets" are covered under Entry No. 21 of Ust 2 of Appendix 6 to AM 1985-88 Policy but declined to give benefit of duty exemption under the said Notification holding that "in the Instant case what Is important Is not Infusion Set for treatment of cancer" and that "In view of the fact that there are a number of infusion Sets with variable applications and having different shapes and sizes it would not be possible to include "Scalp Vein Sets" under the heading 'Intravenous Canulae and Tubing tor long term use'". The Collector, however, did not impose any personal penalty keeping in view the peculiar nature of the case and consignment. Hence the Instant appeal.
3. We have heard Shri L.U. Balani, learned counsel for the appellants and Shri J. Gopinath, learned SDR for the respondent.
4. Shri Balani, learned counsel for the appellants submitted that the imported goods namely "Scalp Vein Sets" are "Intravenous Canulae and Tubing for long term use Infusion Sets" as certified by the Deputy Chief Controller of Imports and Exports and ultimately held by the Collector of Customs, Cochin In the instant case. He further submitted that these are "Life Saving Equlpmens". He showed us a sample of the product and submitted that this "Infusion Set" is also known as "Scalp Vein Set", "Winged Infusion Set" as would appear from the packing of the sample so produced where the following printed words appears :
"SCALP VEIN SET HAKKO WINGED INFUSION SET1 He also drew our attention to the catalogue of SURFLO Brand Infusion Set wherein it is shown that the goods are used for cancer treatment. He also contended that when the Deputy Chief Controller of Imports and Exports has clarified that the goods could be imported under OGL as the same are covered by Sr. No. 21 of List 2 of Appendix 6 which reads as "Intravenous Canulae and Tubing for long term use" and the Collector on the basis of the said certificate held the import authorised it was not open to him to treat the goods imported differently for the purposes of assessment. He further contended that when the Madras and Bombay Customs Houses are allowing identical goods under OGL for nearly a decade and giving the benefit of Notification No. 208/81 -Cus., dated 22-9-1981 it was not proper on the part of the Collector, Cochin to deny the benefit of the Notification in question and to support his contention he produced the copies of Order-in-Appeal No. S/49-380/86 L, dated 11-3-1987 passed by the Collector of Customs (Appeals) Bombay and Order-in-Appeal No. C-Cus. 1168/87, dated 6-10-1987 passed by the Collector of Customs (Appeals) Madras and also filed the photo copy of letter dated 29-7-1986 written by DGHS, New Delhi to M/s. Life Line Systems Pvt. Ltd., New Delhi certifying that Infusion Sets/Scalp Vein Sets is for giving IV drip and is covered under Notification No. 208/81 -Cus., dated 22-9-1981. He also relied upon the decision rendered by this Tribunal in the case of Life Line Systems Pvt. Ltd. v. Collector of Customs, New Delhi, 1988 (33) E.CT. 699 wherein the benefit of exemption Notification No. 208/81 -Cus. in question was extended to the imported goods namely "Centracath - IV Canulae with Tubing for long term use". In reply Shrl J. Gopinath, learned SDR while supporting the impugned order also placed reliance on the case of Life Line Systems Pvt. Ltd. v. Collector of Customs, New Delhi, supra cited by the appellants.
5. We have considered the arguments. We are of the view that the goods imported answers the description of entry "Intravenous Canulae and Tubing for long term use" at Sr. No. 19 of Schedule B to Notifiction No. 208-Cus., dated 22-9-1981. As stated above the Deputy Chief Controller of Imports and Exports has clarified in his letter that the imported goods namely "Scalp Vein Sets" are covered under entry No. 21 of List 2 of Appendix 6 to AM 1985-88. Said entry No. 21 of List 2 of Appendix 6 to AM 1985-88 and entry at Sr. No. 19 of Schedule B of the Notification No. 208-Cus., dated 22-9-1981 are identically worded. Under these circumstances when imported goods namely, 'Scalp Vein Sets' are considered as 'Intravenous Canulae and Tubing for long term use' for ITC purposes as per the clarification given by the licensing authorities, we think that the benefit of the said Notification under its Sr. No. 19 of Schedule B be not denied to the appellants. From the said two Orders-in-Appeals passed by the Collector (Appeals) Bombay and Madras (photocopies are on record) we find that these Customs Houses are extending benefit of the Notification in question that is to say, Notification No. 208/81 -Cus. In these circumstances we have no hesitation in holding that the appellants are entitled for the benefit of Notification No. 208/81-Cus., dated 22-9-1981.
6. It may be stated that since we have decided as above that the imported goods fall under Item No. 19 of Schedule B of Notification No. 208-Cus., dated 22-9-1981 we are not deciding the other contention of the learned counsel for the appellants that the imported goods also fall under item No. 44 added under Heading "B Life Saving Equipments" under which "Ancillaries for Blood Component Therapy required for the treatment of cancer" and are, therefore also exempted from payment of duty.
7. In the result we set aside the impugned order and allow the appeal with consequential relief.