TMI Blog1988 (1) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... m the customs duty as also the additional duty of customs, in terms of Notification 208/81-Cus., dated 22.9.1981. The Customs House did not accept the appellants contentions and a show cause notice was issued on 7.3.1985 asking the appellants to show cause as to why the goods should not be confiscated and penalty imposed. The appellants filed a detailed reply and on 16.4.1985, the Collector of Customs, Bangalore passed orders confiscating the goods with an option to redeem the same on payment of a fine of Rs. 9,16,000/-. 3. An appeal was filed before the Tribunal. The appellants also produced clarifications issued by the Director General of Health Services stating that the Urinary Drainage Bags should be classified as Male and Female Urinary Incontinence Sets and was included in Notification 208/81-Cus., dated 22.9.1981 (Item No. 22). After admitting the evidence, the Tribunal directed the Collector of Customs, Bangalore to examine the issue as de novo. 4. A fresh show cause notice was issued by the Superintendent on 14.2.1986 enclosing the opinion of Dr. H. S. Bhatt of Christian Medical College and Hospital, Vellore to the effect that the samples of plastic bags supplied were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the most emotional upsetting things, and there are various devices for dealing with the Urinary Incontinency from catheters to absorbent pads. This type of urinary drainage bag has a closed urinary drainage system. He cited page-324 from General Text Book of Nursing by Evelyn Pearce. Section 9 of this book deals with the The patient with a Genito-urinary disorder . When the patient is sitting in a chair, the drainage bag should be hung low. The drainage bag is widely used to make sure that the catheter is draining properly and to prevent undesirable side effects. He urged that the term Incontinency has been defined in Shorter Oxford English Dictionary as inability to retain a natural evacuation . The goods imported are used as Night Drainage Bags , and have a capacity of 2 litres. There is an integral non-return valve to prevent back flow of urine. Such a precaution is necessary to prevent bacterial infrection by the urinary flow travelling upwards towards the body. There is provision for hanging the same from standard Night drainage Frame. 7. The Ld. counsel also urged that the DGHS being the highest authority, his clarification cannot be ignored. The Urinary Drainage Bag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding B is as follows :- Ostomy products (appliances) for managing. Illeostomy, ureterostomy, heal conduit urostomy stoma cases such as bags, belts, adhesive seals or discs or rolls, adhesive remover, skin barriers, micropire surgical tapes, bag closing clamps, Karaya seals, paste or powder, irrigation sets, plastic or rubber faceplates, flanges, male or female urinary incontinency sets, singles in parts or sets." 11. We also notice that Appendix 6, List No. 2, Item No. 38 of the ITC Policy for AM 1984-85 contains the similar wordings. If these goods are male or female urinary incontinency sets , then the benefit of the notification cannot be denied. The appellants have produced before us a catalogue issued by the suppliers. The products are for promoting continence . From a perusal of the literature, filed by appellants, it is seen that the patients affected by incontinence have, unfortunately, to face urinary problems of a highly complicated nature. A certain amount of understanding and moral support is absolutely essential to assist such patients. Viewed in the complexity of the problem, the use of urinary drainage bags is absolutely essential and is a necessary measure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion by the competent authorities cannot be ignored without valid reasons. The emphasis is greater because the notification itself constitutes this authority to certify the nature of drugs, medicines or equipments in respect of those falling under Heading C . 12. In the prior order, the Tribunal directed the Collector to draw the attention of Dr. H.S. Bhatt to the opinion of the DGHS. The Tribunal, however, took care to point out that if the opinion of other expert was obtained, his attention could be drawn to the certificate of the DGHS and comments of such expert obtained in respect of such certificate. It is significant to note that the Collector did not draw the attention of Dr. H.S. Bhatt to the opinion of DGHS as directed by the Tribunal. Be that as it may, the Collector got the opinion of two other experts i.e. Dr. A.F.A. Mascrannas and Dr. Joseph A. Anthony. But one would expect the Collector to have drawn the attention of the experts to the observations of the Tribunal and requested the experts to give their comments in regard to the certificate issued by the recognised authority, namely, the DGHS. We regret to note that in their certificates, Dr. Mascrannas and als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he management of patients in whom ureterostomy has been carried out. Thus, we notice that the opinion of the DGHS as also the opinion of these experts lend support to the contentions of the appellants. The Ld. counsel for the appellants pointed out that the cost of the imported urine bags was negligible and the same is used even by people with little resources and the same is a life saving equipment. He emphasised that such equipment are in high demand in hospitals, Nursing Homes and number of patients require them as a measure of amelioration in their suffering due to urinary incontinence. Hence, on a careful consideration of all the circumstances, we are of the view that the appellants are entitled to the benefit of exemption under Notification No. 208/81-Cus., dated 22-9-1981 vide Item 22A. 14. In the result, the impugned order is not sustainable and the same is set aside. The appeal is allowed. We direct expeditious clearance of the consignment since the goods are under confiscation. The efficacy of such life saving equipments should not be allowed to be lost by efflux of time due to such prolonged controversy on the applicability of the exemption notification. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
