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TMI Blog2013 (9) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... ible Nasal Pharyngo Bronchoscope, Fibreoptic Flexible Laryngo Brochoscope, Video Laryngo Brochoscope and Video Oesophago Gastroscope, Stroboscope, Fibreoptic Flexible Oesophago Gastroscope." 2. The Commercial Invoice from the supplier showed the description as "IS 1200 Da Vinci Surgical System". Literature published by J. Mitra & Bros, the sole indenting agent of the supplier, who is also an appellant in this proceeding, described the goods as "Endoscopic Artery Bypass System". 3. The Bill of Entry was assessed for Customs Duty of Rs. 29,03,750/- and such amount of duty was paid. Before release of the goods the Special Intelligence and Investigation Unit of the Customs Department seized the goods making out a case that the description of the equipment was misdeclared to avail customs exemption for endoscopes whereas the goods were actually surgical robotic system with endoscopy only as an aid. While the matter was under dispute the appellant paid an amount of Rs. 2,05,58,550/- in addition to the amount initially paid and took provisional clearance of the goods. Thereafter Show Cause Notice was issued for adjudicating the disputed issue as also for imposition of penalties on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... listed endoscopes". The main functions of this equipment are already listed in the catalogue provided. Its use is not only in the field of coronary artery bypass surgery but also for vascular heart diseases and congenital heart diseases. Its application is not only in the field of cardiothoracic and vascular surgery but also in Urology, general surgery, obstetrics and gynaecology." 6. They also rely on the opinions of the following experts : (i) Dr. Gopichand Mannam of M/s. Care Hospital, Hyderabad; (ii) Dr. Rajan Santhosham of Indian Association of Cardiovascular-Thoracic Surgeons; (iii) Prof. D. Prasad Rao, Director, Nizam Institute of Medical Sciences, Hyderabad. 7. The position that emerges from the opinions of the above experts is that the equipment was a surgical system using endoscope as one of the critical component without which the equipment could not function. They were of the view that the item can be called as an endoscopic system with auxiliary functions. 8. Further the appellants argue that the goods were assessed provisionally and in such a situation, cargo could not be seized. Further before finalizing provisional assessment no demand could be issued under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrols the robot." 12. Ld. A.R. further argues that the manufacturer's catalogue or invoice nowhere describes the equipment as an endoscope. Such description was added by the importer just to claim the exemption for endoscope with the help of brochures prepared by the indenting agent. The indenting agent only gave the advice in this regard. The other persons on whom penalty was imposed also played an active role in such misdeclaration and therefore the penalties imposed are perfectly justified. 13. Specific roles of each of the persons were explained by Revenue as under : 13.1 Role of Care Foundation As the importer of the goods which were misdeclared for availing a customs duty exemption they are liable to penalty under Section 114A of the Customs Act. 13.2 Role of M/s. J. Mitra and Sons M/s. J. Mitra and Sons as indenting agent submitted to M/s. CARE a brochure published by them describing the imported equipment as an endoscope whereas the manufacturer, M/s. Intuitive Surgical Inc. USA's literature and documents, described the product as "Da Vinci Surgical System". It was on the basis of the said brochure and on the advice M/s. J. Mitra & Bros, that M/s. CARE had claimed co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gory of fiber optic endoscopes the exemption could be extended to this equipment also. 16. No doubt that few private doctors had opined that the item could be called an endoscope. Their opinion do not weigh heavily in the context of opinion of Dr. Venu Gopal, Director of AIIMS who himself is a cardiac surgeon heading a National Institute during material period. The other doctor from Osmania General Hospital was also an authority whose opinion also is not controverted. These Authorities of National Institutes are guardians of public interest and health policy of the State. 17. The manufacturer's invoice nowhere gives the description of the equipment as an endoscope. The literature clearly shows it is a robotic surgical system which uses an endoscope as a means for viewing. It is surgical system with endoscope as one of the components. So we are clearly of the view that this equipment could not have been considered as a fiber optic endoscope eligible for exemption under Notification 21/2002-Cus. at S. No. 363A. Actually this matter was not pressed hard by the appellants during hearing hence we are not dwelling on the issue in greater detail. The issue argued vociferously was about ..... X X X X Extracts X X X X X X X X Extracts X X X X
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