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TMI Blog2009 (7) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... peals. Appeal No. C/630/07 2. M/s. Datex Ohmeda (India) Pvt. Ltd. (Datex) imported goods described as Anesthetic Ventilator System (AVS) under the cover of the following eight Bills of Entry:- Bill of Entry No. Date 328392 332500 332165 332168 332499 332516 3560 3561 15-1-2007 29-12-2006 29-12-2006 29-12-2006 29-12-2006 5-1-2007 30-12-2006 30-12-2006 The above consignments were sought clearance under concessional rate of duly in terms of Sl.No. 363(A), list 37, Item 30 of Notification No. 21/02-Cus. dated 1-3-2002 which extended concessional rate of 5% basic customs duty and full exemption from CVD against SI. No. 61 of Notification No. 6/2006-CE., dated 1-3-2006. The goods under import were assessed on merits fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing Bills of Entry were assessed at merit rate vide Order-in-Original No. 33/2007 dated 29-3-2007 denying the benefit of exemption under notifications involved. Bill of Entry No. Date 344081 17-1-2007 348632 348659 372370 372371 372372 380345 365820 369079 23-1-2007 23-1-2007 21-2-2007 21-2-2007 21-2-2007 6-3-2007 14-2-2007 17-2-2007 Consignments of AVS imported under the following Bills of Entry were initially allowed exemption benefit in terms of the same notifications. Bill of Entry No. Date 254717 22-9-2006 254718 22-9-2006 254722 22-9-2006 303474 25-11-2006 328147 23-12-2006 328336 23-12-2006 328392 23-12-2006 216980 2-8-2006 131540 10-4-2006 Subsequently, after due process of law, the Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order was passed in violation of principles of natural justice. The same deserved to be vacated. The appellants relied on several case law in support of this prayer. The department could not travel beyond the show cause notice and rely on grounds which did not find mention in the show cause notice. The impugned order was not sustainable since, in respect of import of identical equipment, vide Order-in-Appeal No. 92/2007 dated 26-7- 2007, the same authority had allowed the benefits extended under Notification No. 21 /2002-Cus., dated 1-3-2002 and No. 6/2006-CE., dated 1-3-2006. Such con- tray decisions were not maintainable in law. The appellants relied on the judgment of the Hon'ble High Court of Kerala in Joy v. Regional Transport Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a ventilator capable of being used with Anaesthesia apparatus or, actually used with it. This meant that the benefit could not be extended to anaesthesia apparatus used with ventilator function or to a composite machine having predominant function as anaesthesia delivery, incorporating ventilator feature. The expert opinion produced by the department had supported such a view. 9. We find that the technical literature of the manufacturer viz. Datex Ohmeda on the product reads as follows: "Aestiva/5 essentially a ventilator system, used for ventilating patients Undergoing anesthesia procedure with provision of both mechanical and manual ventilation, Aestiva/5 and Aestivate/57100 are microprocessors based electronically controlled, pneumat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses based on the requirement of the patient. The ventilator system consists of pressure reducing valves, calibrated flow meters and calibrated vaporizers for mixing of the anesthetic gas that will be delivered to the patient through ventilator. The ventilator is equipped with the patient breathing system consists of the bellows assemble, circle module, re-breathing bag and the breathing circuit This patient breathing system contains the anesthetic gas mixture to be delivered to the patient." 11. The impugned equipment has composite functions with that of ventilator as the predominant function. From the records we find that an anaesthesia ventilator system (impugned goods) would cost approximately Rs.10 to 12 lakhs, as against the cost of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparatus and eligible for the exemption claimed."
12. In the circumstances, we find that the impugned order is not sustainable in law and accordingly, we vacate the same and allow the appeal filed by Datex.
13. This appeal is filed by the revenue canvassing denial of the benefit of notifications to similar goods as Impugned in the above appeal filed by the importer seeks to vacate the Order-in-Appeal No. 93/2007 dated 26-7-2007. As we have held that the impugned goods 'Ventilator used with Anaesthesia apparatus" are entitled to the disputed notification benefits, this appeal filed by the revenue is rejected.
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