TMI Blog1999 (12) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... the Directorate General of Health Services, New Delhi issue to M/s. Exim India, 5618 A. Bhagirathi Palace, Delhi 110 006. The goods were allowed to be cleared provisionally and on execution of necessary bond by the importer. Later, the Assistant Commissioner (Customs) ICD, Coimbatore vide his letter, dated 9-10-1995 addressed to the Directorate General of Health Services, New Delhi seeking clarification in the matter along with the samples drawn from the imported consignments. On the question as to whether the consignments were covered under the said description of the said notification, the Asstt. DG, DGHS, New Delhi vide his letter, dated F. No. 36011/95-MG, dated 16-2-1996 addressed to the Assistant Commissioner of Customs, Coimbatore stated that the product in question was covered within the Sl. No. 34 of the said Notification. Based on the said clarification, the Asstt. Commissioner assessed the Bill of Entry finally on 28-9-1995. The importers thereafter again filed 4 Bills of entries, where details and the assessable value are noted in the Order-in-Original. The same were assessed provisionally and cleared on execution of bond. Subsequently, it was learnt by the authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets and had certified the same to be life saving one and falling under the said category of the Notification. They also pointed out that the opinion relied by the department from Dr. P. Joseph Satyananthan was not on the basis of the imported item but he was referring to a cannula which was correspondingly bigger and designed for use in the major vessels, while the item in question was used only in the blood vessels and it was very small in size. Therefore, they pleaded that the fresh finding was pari materia to the imported material and hence the opinion given by DGHS in their case should be accepted. The Assistant Commissioner noted this contradictory opinion and referred the matter to DGHS through Deputy Commissioner (Customs) enclosing the certificates. The DGHS vide their fax message, dated 26-3-1997 confirmed the opinion of Dr. Joseph Satyananthan. Besides informing that clarification, dated 27-3-1995 issued to M/s Exim India and, dated 16-2-1996 issued to the Assistant Commissioner (Customs), ICD Coimbatore stood withdrawn. The Asstt. Commissioner without referring this matter to the importers proceeded to pass the order denying the benefits and confirming the demands. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utta High Court in the case of Trio Marketing Pvt. Ltd. v. U.O.I. as reported in 1992 (57) E.L.T. 249 (Cal.) which dealt with the item Intravenous cannulae and tubing for long term use and in this regard the High Court had held that Scap Vein Sets did not fall within this description. In this regard, the Revenue stated that Intravenous Cannulae do not bring within its ambit Scalp Vein sets in view of the findings of the High Court that the item does not have a long term use. In the light of the said description in the erstwhile Notification 55/95-Cus., dated 16-3-1995 and further description given under Sl. No. 42 of the Notification No. 208/81. They further stated that the Commissioner (Appeals) order allowing the appeal are relating to exemption available for Sl. No. 19, i.e. Intravenous cannulae and tubing for long term use of Notification No. 208/81 as amended. They stated that even in the same notification, Sl. No. 42 reads as Disposable and Non disposable cannulae for Aorta Vena cavae and similar veins and blood vessels and cannula for Intra Corporal spaces . They stated that this clearly indicates that both the descriptions at Sl. No. 81 and 91 and Sl. No. 42 in the ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ula as the reference to Cannula as defined in the shorter Oxford English Dictionary, 3rd Edition is as follows :- A tubular instrument introduced into a cavity or tumer in order to allow fluid to escape, hence cannular; tubular . They contend that it is not in the form of a tube to be inserted in the vein and as such not having satisfied the definition of the term cannula, the item cannot get the benefit of the notification also. 6. Ld. Chartered Accountant Shri P.C. Anand contends that all the certificates given by the doctors to the Revenue are in support of the respondent s case. He points out that there is no dispute on the item being a cannula in any of the expert evidence produced from either side. Even as per the definition, the cannula is required to be inserted into a vein and in the present case, the item is used in the veins as well as blood vessels for intrafusion purpose, therefore the only thing required for interpretation is as to whether the item is used for intravenous purpose by insertion in the blood vessels. He contends that the blood vessels in the description appearing in Sl. No. 34 of the table to the Notification No. 55/9 has to be read independent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification does not lay down any such criteria of certification from DGHS. It is only in respect of any other medical equipment including accessories or spare parts or both of such equipment which are not specified in the table of the Notification which requires certification from the DGHS to the effect that they are life saving equipment, accessories or spare parts for the purpose of grant of the benefit , as can be seen from the proviso to the notification. In any case, the item being a Cannula cannot be disputed as the certification given by the experts on both the sides do not dispute the item being an intravenous cannula . The Sl. No. 32 incorporates both disposable as well as non disposable cannula. The respondents clearly admit that the same is not used in aorta, vena cavae and similar veins. But, however, they are stating that it being a cannula, it is for use in blood vessels. The term blood vessel as explained in all the certificates include arteries and veins . The term similar vein in Sl. No. 34 of the notification appear earlier to the term blood vessel refers only to the term aorta and vena cavae. Therefore, cannula used for aorta and vena cavae and si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it cannot be used as such; while Dr. Thomas Alexander of Kovai Medical Center and Hospital Ltd. has clearly opined that these are disposable cannula used for cannulating peripheral veins and occasionally for access to peripheral arteries and that they are not used for direct cannulation of the aorta or inferior vena cavae. Therefore, this certificate is clearly in favour of the respondents. Likewise, there are number of other certificates also produced by the Revenue which are all in favour of the respondents except those where in a specific question was asked with regard to the exclusion portion of the notification which has been answered in negative, which are not required for purpose of determining the matter. We notice that the respondents have also produced large number of certificates from eminent doctors like Dr. K.M. Cherian, Emeritus Professor in Cardio Thoracic and Vascular Surgery of Dr. M.G.R. Medical University. Also there are other senior experts like Dr. A. Ramamoorthy, Dr. S. Ranjan of the same University who have all opined in favour of the respondents regarding its use in the blood vessels. There are further opinions of experts like Dr. V. Satya Prasad of Amri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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