Customs, Excise and Gold Tribunal - Delhi
Lab India Chemicals And Ors. vs Collector Of Customs on 12 December, 1988
Equivalent citations: 1989(20)ECC19, 1989(21)ECR71(TRI.-DELHI), 1989(40)ELT438(TRI-DEL)
ORDER K.L. Rekhi, Member (T)
1. At the out-set, the Bench heard the request for condonation of one day's delay in filing the Appeals Nos. C-412 & 413/86-B2 of M/s. Shah Trading Corporation. The delay was due to postal transit. The request for condonation was not opposed by the learned representative of the department. The Bench condoned the delay and took these two appeals on record.
2. Coming to merits, the common point of dispute in these 14 appeals is whether Scalp Vein Sets (winged infusion sets) were entitled to the total exemption from customs duty under Notification No. 208-Customs, dated 22-9-1984. This notification gave full exemption to certain specified Life-Saving drugs and equipments. The entry relevant for our purpose in this notification reads as -
"xxxxxxxxxxxxxxxxxxx"
B. Life Saving Equipments xxxxxxxxxxxxxxx
19. Intravenous Canulae and tubing for long term use.
xxxxxxxxxxxxxxx x"
An identical entry appeared in the Import Trade Control Policy - Open General Licence also.
3. The appellants brought to our notice that the point at issue already stood settled by the following two judgments of this Triubunal:
(1) 1988 (37) ELT 58 (Tribunal) - Unival Surgical Traders v. Collector of Customs.
(2) Order Nos. 359 to 362/88-B2, dated 29-6-88 passed in appeal Nos. C-1492/85-B2 and others of M/s. K. Hargovindas & Co. and Ors.
The appellants stated that while deciding the above two matters, the Bench had taken note of the fact that the Import Trade Control Authorities had issued a clarification that Scalp Vein Sets were covered by the Open General Licence entry and that the Collector (Appeals) at Bombay and Madras had held that Scalp Vein Sets were covered by the identical entry in the exemption Notification No. 208/81-Customs. The Tribunal had followed the reasoning that if the Government considered that the goods were covered by the Open General Licence entry, there was no reason to deny the benefit of exemption under the identically worded entry in the notification. The appellants mentioned that Collector (Appeals), Bombay, had, in fact, taken the expert advice of the Director General of Health Services to the Govt. of India and decided the matter in favour of the importers on the basis of the said advice. Lastly, the appellants mentioned that the Central Board of Excise and Customs appeared to have come to the conclusion that no appeal need be filed before the Supreme Court against the Tribunal's order Nos. 359 to 362/88-B2, dated 29-6-88 aforesaid. In other words, the appellants argued, it meant that the Board had accepted the Tribunal's judgments on the classification issue. The appellants added that while, on the one hand, the Government had decided not to appeal to the Supreme Court, on the other hand the Government had not chosen to amend the relevant entries in the exemption notification and the Import Policy; on the contrary, the Government had specifically amended the notification to extend the benefit of duty free imports to Scalp Vein Sets for cancer treatment. The appellants requested for benefit of the exemption notification being extended to them and, on the ITC side, the confiscation of the goods and the redemption fine being set aside.
4. The learned representative of the department opposed the appellants' prayer. He reiterated the arguments of the adjudicating Collector contained in the order-in-original No. SG. Misc-100/83-A, dt. 6-7-84 which is the impugned order-in-appeal No. C-1280/84-B2. In fact, at the instance of the Bench he read the relevant portions of the order in the Court. The Bench asked him to do so with the intention that if any new and material points had been made by the department, the appeals could be considered for reference to a Larger Bench of the Tribunal for hearing and disposal.
5. However, at the conclusion of the hearing, we did not feel that it was necessary to refer the matters to the Larger Bench. We observed from the Collector's orders that he neither got any categorical opinion from the medical experts nor he himself came to any categorical finding on the point at issue. We re-produce his own words:
"19. I now turn to the Certificates issued by various Doctors and Hospitals. Here I find there is utter confusion and contradiction..... ... If anyone were to ask whether scalp vein sets and intravenous cannula for long term use could be used for the same purpose or would serve the same need, the answer would certainly be in the affirmative."
The learned representative of the department was frank enough in saying that even the opinions given by the Director General of Health Services to the Govt. of India, from time to time, were conflicting. There is, however, no denying the fact that the goods in question are life saving equipments. Therefore, in keeping with the declared intention of the exemption notification and the OGL and bearing in mind that quite a few medical experts have, from time to time, considered Scalp Vein Sets as coming within the relevant entry of the exemption notification and the Open General Licence, the Bench finds no reason to disagree with the earlier two judgments of this Tribunal on the issue.
6. Accordingly, we allow all the 14 appeals and set aside the lower orders. Consequential benefit by way of refund of duty as well as redemption fine in lieu of confiscation, if paid, shall be granted to the appellants.