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2013 (8) TMI 788 - AT - Central ExciseClassification of Goods - AIDS (HIV I and II) Diagnostic Kits and Hepatitis B and Hepatitis C test kits - Heading 30.02 or Heading 30.22 - HSN based classification - Held that:- A comparison of HSN heading 38.22 and Central Excise Tariff Heading 38.22 would show that except for product group “certified reference materials”, in which is there, HSN Heading 38.22 but is not there in Central Excise Tariff heading 38.22, the Central Excise Tariff Heading 38.22 and HSN Heading 38.22 are identical. From a plain reading of Central Excise Tariff heading 38.22 it will be seen that it covers those diagnostic or laboratory reagents whether or not on a backing, which are not covered by 30.02. Since the goods, in question, are diagnostic reagents on a backing, for their classification under 38.22, their classification under Heading 30.02 has to be ruled out. Product group (ii) of Central Excise Tariff Heading 30.02 is identical with product group (iv) of HSN Heading 30.02 The Revenue’s plea is that the diagnostic kits, in question, being based on antigens or monoclonal antibodies derived from culture of micro-organism are not covered by Heading 30.02 and this heading covers only the “cultures of micro-organism”, not the reagents derived from micro-organism cultures. This contention of the Revenue is not correct In terms of Span Diagnostics Ltd. v. CCE, Surat[2007 (4) TMI 617 - SUPREME COURT OF INDIA] the product group “Antisera and other blood fractions” in Central Excise Tariff 30.02 would also include modified immunological products, whether or not obtained by biotechnological process.. HIV detection kits and Hepatitis C detection kits containing antigens obtained from micro-organism cultures, immobilised on a porous immuno-filtration membrane and which work on antigen-antibody reaction (neutralisation) would be covered by Heading 30.02, as in view of the above-mentioned HSN explanatory notes, this heading includes the diagnostic reagents of microbial origin other than those covered by Chapter Note 4(d) [corresponding to Chapter Note 3(d) of Central Excise Tariff Chapter 30], which covers - “Opacifying preparations for X-ray examination and diagnostic reagents designed to be administered to patients, being unmixed products put up in measured doses or products consisting of two or more ingredients which have been mixed for such uses” - and the products, in question, were not covered by Chapter Note 4(d) of Chapter 30 of HSN [Chapter Note 3(d) of Central Excise Tariff Chapter 30] as these products are not the products meant for being administered to patients for diagnostic purposes and are diagnostic reagents of microbial origin which work on the principle of antigen-antibody reaction - For the same reason, Hepatitis B detection kit which consisted of monoclonal antibodies (a reagent of microbial origin) conjugated with colloidal gold and polyclonal antibodies immobilised on a nitrocellulose strip and which also work as the principle of antigen - antibody reaction would be covered by Heading 30.02 – order set aside – Decided in favour of Assesse.
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