TMI Blog1997 (3) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty payable on the said two items. In this view of the matter, the stay granted earlier is made absolute - 13254-13255 of 1996 - - - Dated:- 11-3-1997 - A.M. Ahmadi, CJI and S.P. Kurdukar, J. [Order]. - The appellants manufacture highly specialised ``Cardio Vascular Sutures'' and ``Atraumatic Needled Sutures'', the first used in Cardio Vascular Surgery and the latter used in Ophthalmic Surgery. By Notification No. 339/86-C.E., dated 11th June, 1986 issued under sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, (hereinafter called the `Rules') certain life saving equipments were exempt from the whole of the duty of excise leviable thereon. The exact text of the notification may be reproduced at this stage. ``Exemption to Medical and Surgical Instruments and Apparatus etc. - In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts medical and surgical instruments and apparatus and parts and accessories thereof of the description specified in the Schedule hereto annexed and falling within Chapter 90 of the Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), from the whole of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified in the Schedule below and falling within the Schedule to the Central Excise Tariff Act, 1985.'' 6It may at this stage be mentioned that Section 5A. came to be inserted in the Central Excises and Salt Act, 1944 (hereinafter called the `Act') with effect from 1st July, 1988. By this Section the Central Government was empowered, if satisfied that it was necessary in the public interest so to do, to issue a Notification exempting either absolutely or subject to such conditions to be fulfilled before or after removal as may be specified in the Notification, excisable goods of any specified description from the whole or any part of the duty of excise leviable thereon. The proviso, however, states that unless specifically provided in such Notification, no exemption therein shall apply to excisable goods which are produced or manufactured in a free trade zone brought to any other place in India or by 100% export-oriented undertaking allowed to be sold in India. It is nobody's case that the proviso is attracted in the instant case. After the insertion of Section 5A in the Act, Rule 8 of the Rules came to be omitted. However, sub-section (4) of Section 5A states that every Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion claimed under the Notifications of 11th June, 1986 and 28th February, 1993.'' On the other hand learned Counsel for the appellant-company made a two-fold submission, namely, (i) that the items produced by the appellant-company comprises a hook type needle with suture material fixed to it and, therefore, it fell within Item 90.18 of Chapter 90 of the Schedule to the Tariff Act and hence the exemption Notifications squarely applied to them; alternatively he contended that since exemption was being refused by certain tax officials, the Company had raised the matter with the Central Excise and Customs Authorities and the matter was referred to the Central Board of Excise and Customs as is evident from the letter of the Assistant Collector - F. No. VCH56 (4) 143/TE/92 Aurangabad, dated 5-8-1994. That letter also shows that the Collectorate had not received any clarification from the Board in this behalf and the matter was pending with the Board when this letter was written on 5-8-1994. Subsequently, the Notification No. 60/95, dated 16th March, 1995 came to be issued which has been extracted earlier and another Notification No. 61/95-C.E., dated 16-3-1995 was issued under Section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered by the Chapters/headings/sub-headings mentioned in the Notifications. This briefly is the compass on which the question needs to be determined. 8There is no dispute that Cardio Vascular Sutures. and Atraumatic Needled Sutures are respectively life saving and sight saving equipments manufactured by the Appellant-Company. There is also no dispute that these are excisable goods. The only question is whether the appellants are entitled to exemption under Notifications Nos. 339/86-C.E., dated 11th June, 1986 and 69/93-C.E., dated 28th February, 1993 respectively. The Customs, Excise and Gold Control Appellate Tribunal (Mumbai Branch) has negatived the contention of the appellants. The Tribunal held that the decision of this Court in Jain Engineering case (supra) had no application as in that case the question was whether manufacturers of parts of combustion piston engines were entitled to that benefit or not. Distinguishing the case on that premise the Tribunal refused to place reliance thereon. It then quoted from the order of the Appellate Authority and held that the Appellate Authority and rightly held that the views of the experts could not be relied upon and so holding i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld fall within the term suturing material in Note 3 of Chapter 30. Suturing material by itself may have attracted that item but the composite item comprising the needle as well as the suturing material appended thereto could not fall within the expression suturing material and would not be outside the expression surgical appliances. At the relevant point of time these two were separately dealt with, needle simplicitor falling within the expression 90.18 and suturing material simplicitor falling within clause `a' of Note 3 of Chapter 30 and consequently under Item 3005.90. But when the suturing material and the needle form an integrated single item used for surgical purposes it would not be proper to adopt a narrow construction to place it under the heading of suturing material removing it from the broader terminology of surgical appliance under Item 90.18. It was possibly for this reason that by the subsequent Notifications the position was made clear and the ambiguity was removed. We are, therefore, of the opinion that the items produced by the appellant-company would fall within Entry 90.18 as the terminology surgical appliances has a broader compass than the terminology suturin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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