TMI Blog1990 (2) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... 927/88-B2 are given below:- 2. M/s. Kamal Traders, Bombay had imported 100 cartons of Kosan Angel brand Foley Balloon Catheters per s.s. State of Nagaland of 2112.87, bill of entry No. 3344/8-1-1988, C.I.F. value Rs. 7,36,952.00. A show cause notice dated 17th February, 1988 was issued to the importers. In the show cause notice the importer was called upon to explain how Foley Balloon Catheters intended for removal of urine by increasing the internal pressure on urine bladder were covered by the entry, Suction Catheters which were primarily intended for removal of unwanted fluids from blood system and also how Foley Balloon Catheters were covered by entry serial No. 31 of list 2 of appendix 6 of ITC Policy A.M. 1988 as they were covered by entry at serial No. 370 of appendix 3 part A of AM 1988 and, therefore, could not be imported without a valid licence. 3. The importers at the time of personal hearing referred to CEGAT s order No. C-421/84 dated 29-6-1984 and 509 and 510/85-B dated 17-6-1985 and also a copy of the letter dated 1st May, 1984 from the Director General of Health Services, New Delhi. The importers had taken the plea that Foley Balloon Catheters were Suctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, the Collector did not allow exemption benefit of Notification No. 208/81 and also importation under OGL on the ground that Chief Controller of Imports and Exports has not accepted the opinion of the Director General of Health Services. He had imposed a fine in lieu of confiscation at Rs. 1,40,000.00 (Rs. one lac and forty thousand only). 4. Being aggrieved from the order aforesaid, the appellant has come in appeal before the Tribunal. In the similar issues where the matter has been decided in favour of the importer, the revenue has come in appeal, where the matter has been decided against the importer, the importer has come in appeal. Accordingly, we proceed to decide the above captioned 11 appeals by this common order. 5. Shri A.S.R. Nair, the learned Senior Departmental Representative who has appeared on behalf of the revenue, has reiterated the facts. Shri Nair, the learned SDR has argued that the goods imported are Foley Balloon Catheters. He has pleaded that the Suction Catheters are different from Foley Balloon Catheters. The benefit of notification is only available in respect of Suction Catheters. He has stated that the order passed by the Collector (Appeals) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bay, which appears on page 55 of appeal No. C/1927/88-B2 where it has been mentioned that Balloon Catheters are used for the purpose of drainage and Suction Catheters are used for the purpose of sucking out of fluids. 1. Balloon Catheters are different from suction catheter. 2. As mentioned above, the uses of these two catheters are not identical. 3. Balloon Catheter is used for drainage of urinary bladder for Gastroendarectomy and colostomy." He has referred to the letter dated 1st May, 1984 of Dr. G.H. Gidwani, Director General of Health Services which appears on page 38 of the appeal No. C/1927/88-B2 where it has been mentioned that: the opinion that Foley Catheters are Suction Catheters was based on the opinion of Urologist in Delhi and Asstt. Dean, KEM Hospital, Bombay. And now we have again reconsidered the issue in consultation with Prof. Sarinder Man Singh, Head of the Deptt. of Urology, All India Institute of Medical Sciences and he has confirmed that Foley Balloon Catheters can be used as Suction Catheters and, therefore, come under the term Suction Catheter . Shri Nair has pleaded that letter dated 1st May, 1984 should not be deemed to be a letter from the Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication. He has pleaded that the wording in Notification No. 208/81-Cus and the wording in ITC Policy are similar. He has referred to 1988 (16) ECR 206 = 1989 (39) E.L.T. 431 (Tri.), M/s. Equipment Sales Corporation v. Collector of Customs, Bangalore, where the Tribunal had followed the CGHS certificate to the effect that disputed drainage bags were classifiable as male and female incontinency sets and benefit of Notification No. 208/81-Cus was extended. Shri Nankani has also referred to Gynaecological Nursing by Maureen Reynolds where it has been clearly mentioned that for the treatment of Fistulae it is mentioned that: Occasionally this type of fistula may respondent to conservative treatment, by passing a Foley Catheter and continuously draining the bladder. A low suction pump may facilitate drainage. Shri Nankani has pleaded that Suction Catheter is a Balloon Catheter. Shri Nankani has argued that the goods imported are covered under OGL and are entitled to the benefit of Notification No. 208/81-Cus., dated 22nd September, 1981. He has pleaded that Appendix 6 of the Import Policy which appears on page 28 of the paper book of Appeal No. C/1927/88-B2 which is Appendix 6 list 2 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Shri Nankani. Shri Nankani also referred to another judgment of the Bombay High Court in the case of Mansukhlal Chhaganlal Desai, Bombay v. Union of India reported in 1989 (40) E.L.T. 314 where the Bombay Hight Court had followed the Tribunal s order. He further argued that against this order of the CEGAT appeals were filed before the Supreme Court, but the appeals were dismissed being hit by limitation. Shri Nankani has argued that there is no difference in the earlier import policy, exemption notification as well as subsequent import policy. He has pleaded that it is a life saving equipment. He has also argued that the trade parlance has to be looked into. In support of his argument, he has referred to Swastic Woollen and Others v. Collector of Customs, Bombay reported in 1988 (34) E.L.T. 83 and had laid special emphasis on para No. 15 which appears on pages 92 and 93 and pleads that instructions given by the Tariff advice are not binding. In the case of Collector of Customs, Bombay v. Swastic Woollen (P) Ltd. Ors. reported in 1988 (37) E.L.T. 474 (SC) = 1988 (18) ECR 373 (SC) the Supreme Court had held that in the absence of statutory definition, its connotation in trade pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain has pleaded for the acceptance of the importers appeals and dismissal of the revenue s appeals. 11. We have heard both the sides and have gone through the facts and circumstances of the case. The facts are not disputed. The goods imported are brand Foley Balloon Catheters. We have also perused the import policy. The matter stands fully covered by the earlier judgment of the Tribunal which was followed by the Bombay High Court in the case of Mansukhlal Chhagan Lal Desai v. Union of India reported in 1989 (40) E.L.T. 314. We have also considered the revised opinion of the DGHS. Para Nos. 6, 7 and 8 from the judgment of the Tribunal in the case of P.R. Parekh v. Collector of Customs, Bombay reported in 1987 (30) E.L.T. 493 are reproduced below :- 6. We have carefully considered the submissions before us. The letter dated 1-5-1984 from the Director General of Health Services signed by Dr. G.H. Gidwani for the Director General of Health Services clearly states that the opinion that Foley Catheters are Suction Catheters is based on the opinion of the Urologist in Delhi and Asstt. Dean, K.E.M. Hospital, Bombay. The Directorate has since reconsidered the issue in consultation wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the notification. We, therefore, set aside the impugned order, allow the appeal and direct consequential relief to the appellants within 2 months from the date of communication of this order. 8. We do not think that the reason given by the Collector for not accepting the licence offered for clearance of the goods (presuming the licence was valid to cover the goods) is a sound one. Even if the party had attempted to clear the goods under OGL under a misdescription (we have found that there was no misdescription), that would not be a sufficient reason not to accept a licence offered for clearance of the goods if that licence was valid otherwise to cover the goods." A simple reading of the earlier judgment shows that the facts of the present appeals are very much similar. This judgment was followed by the Tribunal in the later decision in the case of Collector of Customs, Bombay v. P.R. Parekh reported in 1987 (27) E.L.T. 706. Para No. 4 from the said judgment is reproduced below :- 4. The respondents have produced a photostat copy of Order No. C-421/84 dated 29th June, 1984. There is no dispute by either party that this order by the Tribunal squarely covers the goods in qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use their discretion only when there is no declared principles to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter shall be referred to a Larger Bench. It is a subversion of judicial process not to follow this procedure. It is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a two-member Bench is appraised of a decision given by a Larger Bench on the same subject matter, the said Bench should accept and follow the same and not embark upon to consider the matter even if they are inclined to take a different view. That is proper and traditional way to deal with such matters. This practice is founded on healthy principles of judicial decorum and propriety. This doctrine of binding precedent has the merit of promoting certainty and consistency in judicial decisions and enables an organic development of the law, besides providing assurance to the individual as to the consequences of transactions forming part of his daily affairs." In view of the earlier judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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