TMI Blog2009 (7) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... ting ventilator function, such machines could not be called as “Ventilator used with Anaesthesia apparatus”. Held that- 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. - C/630/2007 and C/9/2 008 - 1163-1164/2009 - Dated:- 29-7-2009 - S/Shri M.V. Ravindran, Member (J) and P. Karthikeyan, Member (T) Shri B.V. Kumar, Advocate, for the Appellant. Ms. Sudha Koka, SDR, for the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the Commissioner (A) found that impugned goods discharged two functions; it administered anaesthesia and provided ventilation support where a critically ill patient needed surgery as well as ventilator service. He found from the literature furnished by the importer that AVS was a multi- function apparatus integrating ventilator system with anaesthesia delivery control. As the ventilator function was integrated with the anesthesia delivery, the impugned machines were ventilator machines used with anesthesia apparatus. He found that the impugned goods were AVS entitled to the exemption under the notifications. He was fortified in his finding by the expert opinion furnished by the appellants. 3. Appeal No. C/630/07 filed by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) affirmed, the orders of the original authority. The Commissioner (Appeals) found that for the impugned goods to be eligible for the benefit, they should be basically a ventilator capable of being used with anesthesia 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 anesthesia delivery integrated with ventilator feature. As against the general description of Anesthesia Delivery System certifying which the assessee had produced expert opinion, the revenue had submitted expert opinion furnished by hospitals on the specific equipment which supported his above finding. Moreover, the machinery was understood and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egality. 6. During hearing, the learned Counsel representing the appellants cited the decision of the Delhi Bench of this Tribunal vide Final Order No. C/126-129/2009 - 2009-CU(DB) dated 6-3-2009 [ (241) E.L.T. 369 (Tribunal)], in the case of CC, (I G), New Delhi v. 24's. Datex Obmeda ( India ) Ltd . and M/s. Wipro GE Healthcare Put. Ltd. wherein identical equipment were held to be entitled to the disputed exemption. 7. We have heard both sides. 8. The issue involved in this case is the eligibility to exemption contained in Notification No. 21/2002-Cus., dated 1-3-2002 and 6/2006-CE. dated 1-3-2006 to "Ventilator used with Anaesthesia apparatus". Both the notifications extended the concession to "Ventilator used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs in breathing circuit are used to control and monitor patient ventilation as well as measure inspired oxygen concentration. This allows for the compensation of compressor losses, fresh gas contribution and small leakage in the breathing absorber, bellows and system. User setting and microprocessor calculations control breathing patterns. User interface stores settings memory. The user may change settings with simple and secure set ting sequence. Positive End Expiry Pressure (PEEP) is regulated electronically. The Aestiva/57 has standard volume control and optional pres sure mode of ventilation. The Aestiva/57900 has both volume control and pressure control modes of ventilation with options of upgrading to SIMV and pressure support ventila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions of the impugned goods, we find that the equipment is a ventilator used with anaesthesia apparatus and entitled to the disputed exemption benefit. In the Final Order No. C/126-129/2009 2009 CU(DB) dated 6-3-2009 [2009 (241) E.L.T. 369 (Tri. Del.)] cited by the appellants, the Tribunal had observed as follows: "6.2 The department wants to consider the ventilator with anesthesia apparatus as a mere anesthesia delivery system. The respondents want to treat the same as ventilator system with in-built anesthesia device. The notification grants exemption to ventilator used with anesthesia apparatus. The claim of the respondents that the imported goods are covered by the description in the notification is well founded. It cannot be merely ..... X X X X Extracts X X X X X X X X Extracts X X X X
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