Custom, Excise & Service Tax Tribunal
) Allied Healthcare India vs ) Commissioner Of Customs (Airport), ... on 15 June, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal Nos.C/376/2003 & C/24/2004
C/CO/10/2005
[Arising out of Order-in-Appeal No.C.Cus.543/2003 dt. 29.9.2003 passed by the Commissioner of Customs (Appeals), Chennai]
For approval and signature:
Honble Ms.JYOTI BALASUNDARAM, Vice-President
Honble Dr. CHITTARANJAN SATAPATHY, Technical Member
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? :
3. Whether the Members wish to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
1) Allied Healthcare India
2) Commissioner of Customs (Airport),Chennai
Appellant/s
Versus
1) Commissioner of Customs (Airport), Chennai
2) Allied Healthcare India
Respondent/s
Appearance :
Ms.Sridevi, Advocate Ms.Indira Sisupal, JDR For the Assessee For the Revenue CORAM:
Honble Ms.Jyoti Balasundaram, Vice-President Honble Dr. Chittaranjan Satapathy, Technical Member Date of hearing : 15.6.2010 Date of decision : 15.6.2010 Final Order No.____________ Per Jyoti Balasundaram The issue for determination in Appeal No.C/376/2003 is the eligibility of the benefit of exemption in terms of Notification No.17/2001-Cus. dt. 1.3.2001 to Electro-surgical equipment imported by the assessees vide bill of entry dt. 20.11.2001, claiming such equipment to be diathermy equipment. The issue in Appeal No.C/24/2004 is the eligibility to the benefit of the exemption under the same notification to Cardiac Stents imported under bill of entry dt. 3.12.2001. The Commissioner (Appeals) has extended the benefit of exemption to cardiac stents, accepting the assessees plea, relying upon technical literature and certificate of one Dr.G.Sudarsana, that stents are accessories of catheters. He has, however, rejected the claim for exemption to Electro-surgical Generator on the ground that diathermy apparatus is different from electro-surgical apparatus and the two cannot be treated as similar apparatus.
2. We have heard both sides. As per the invoice and the catalogue, Electro-surgical Generator is used for laproscopic surgery. It utilizes the low cut, low wagulation outputs, uses lower voltage to reduce the risks of capactive coupling. As per Explanatory Notes to Chapter 90, Diathermy apparatus is the one which is used to treat certain diseases which require heat such as rheumatism, neuralgia etc. and these apparatus use high frequency (software, ultrasonic etc.) currents and employ electrodes in a variety of forms. HSN Explanatory Notes on Electro-surgical Generator describes such apparatus as one which utilizes high frequency electric current, the needle, probe etc. forming one of the electrodes. They can be employed to cut tissues (electro cutting) with a lancet (electric lancet) or to coagulate the blood (electro coagulation). Diathermy is a form of heat treatment using high frequency electromagnetic currents. These cause molecules in deep tissues to vibrate, heating the issues and increasing the blood flow to them, thus speeding up the recovery. Wikipedia on Electro-surgery states that often electro-surgery is mistakenly referred to as diathermy and that unlike Ohmic heating by electric current passing through the conductive tissue in conventional electro-surgery, diathermy means dielectric heating, produced by rotation of molecular dipoles in high frequency alternating electric field. From the above, it is clear that the goods in question which can be used surgically (or invasively) are different from diathermy equipment which is non-invasive. Since the exemption is available only for diathermy apparatus, the benefit cannot be extended to the electro-surgical apparatus imported by the assessees. We, therefore, uphold the impugned order in so far as it relates to denial of exemption to electro-
surgical apparatus, and dismiss the Appeal No.C/376/2003.
3. Now, we take up the appeal of the Revenue. We find that the issue of availability of exemption to cardiac stents stands settled in favour of the importers by Tribunals order in the case of Commissioner of Customs, Chennai Vs Indian Surgicals [2009 (244) ELT 603] wherein the Tribunal has accepted, on the basis of the certificate from the very same Dr.G.Sudarsana, that stents are essential for treatment function of endoscope and are to be treated as accessories of cardiac catheters and extended the benefit of the same notification. Following the ratio of the above decision, we uphold the impugned order in so far it relates to granting exemption to cardiac stents.
4. In the result, both the appeals are dismissed.
The cross-objection filed by assessees is also dismissed as it is only in the nature of comments upon/reply to the Revenues appeal.
(Operative part of the order was
pronounced in open court on 15.6.2010)
(Dr.CHITTARANJAN SATAPATHY) (JYOTI BALASUNDARAM)
TECHNICAL MEMBER VICE-PRESIDENT
gs
1
5