TMI Blog2015 (6) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... ication is not confined only to the IV Cannula meant for aorta or vena cavae and for intra-corporal spaces. It is also applicable to IV Cannula meant for the arteries and veins similar to aorta and vena cavae, if the Department s stand that similar veins and blood vessels means the veins and arteries similar to vena cavae and aorta is accepted. In this Regard, Dr. Prabhu Vinayagam, Assistant Manager (Training) of the appellant company has claimed that cipahlic veins, basilic veins and metacarpal veins etc. are similar to vena cavae and the IV Cannula can be used for these veins. The Department, however, has chosen to rely only on the opinion of Dr. P. Ravindran which, as discussed above, is silent on the point as to which blood vessels are similar to aorta and vena cavae and whether the Cannula, in question, can be used for the blood vessels similar to aorta and vena cavae. In view of this, permitting the cross examination of Dr. P. Ravindran was necessary, but unfortunately the same has not been allowed. In our view, therefore not permitting the cross examination of Dr. P. Ravindran in the circumstances of the case has vitiated the proceeding. Impugned orders denying the exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, the medical equipment (excluding folley balloon catheters) and other goods specified in list 37 annexed to the Notification 21/02-CUS dated 01/3/02 . List 37 of the Notification No. 21/02-CUS among other items covered Disposable and non-disposable Cannula for aorta, vena cavae and similar veins and blood vessels and Cannula for intra-corporal spaces . Thus during the period of dispute, in terms of exemption Notification No. 6/03-CE dated 01/3/03 and its successor notification readwith Customs Notification No. 21/02-CUS dated 01/3/02 (list 37) the Disposable and non-disposable Cannula for aorta, vena cavae and similar veins and blood vessels and Cannula for intra-corporal spaces were fully exempt from Central Excise duty. The appellant treating the IV Cannula being manufactured by them as covered by this exemption were clearing the same at nil rate of duty. However, sometime in 2004, the Department initiated inquiry to ascertain as to whether the IV Cannula being manufacturing and cleared by the appellant are covered by the expression Disposable and non-disposable Cannula for aorta, vena cavae and similar veins and blood vessels and Cannula for intra-corporal spaces . In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal s judgment in the case of CCE, Coimbatore vs. Saberwal Surgical (P) Ltd. (supra) was in respect of exemption Notification No. 55/95-CUS (Sl. No. 34) which covered for exemption disposable and non-disposable Cannula for aorta, vena cavae and similar veins and blood vessels and Cannula for intra-corporal spaces , which is identical to the entry in list 37 of the exemption Notification No. 21/02-CUS, that the dispute in this case was as to whether top brand scalp vein infusion set imported by the assessee were eligible for the duty exemption under Notification No. 55/95-CUS (Sl. No. 34), that Tribunal in this judgment held that the top brand scalp vein infusion sets can be treated as the Cannula meant for blood vessels and accordingly would be eligible for the exemption, that in this judgment the Tribunal s finding is that in Sl. No. 34 of the Notification No. 55/95-CUS, the word blood vessels has to be read independent of the earlier expression disposable and non-disposable Cannula for aorta, vena cavae and similar veins , that the Tribunal in this judgment observed that the term similar veins in Sl. No. 34 of the Notification No. 55/95-CUS refers only to the vein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be read independent of the preceding expression disposable and non-disposable Cannula for aorta, vena cavae and similar veins or in another words, the word similar before the word veins would not qualify the words blood vessels , and that since the Cannula, in question, are meant for blood vessels, the same are covered by the exemption. Shri Ravinder Narain, also pleaded that the entire case of the Department against the appellant is based on the opinion given by an officer of the DGHS and before acting on the opinion given by the DGHS Officer his cross-examination should have to be allowed and without permitting the cross examination of Dr. P. Ravindran of DGHS, the opinion given by him cannot be acted upon. Shri Narain also referred to the statement of Dr. Prabhu Vinayagam of the appellant company wherein he has stated that the Venflon Cannula being manufactured by the appellant can be used in respect of the veins like Cephalic Veins, Basilic Veins and Metacarpel Veins etc. for intravenous drug administration, intravenous fluids or for infusing blood and these veins are similar to the vena cavae. With regard to the limitation, Shri Ravinder Narain pleaded that since the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal No. E/488/2010 filed by the appellant, that in the expression similar veins and blood vessels , the term blood vessels cannot be read independently and would be qualified by the word similar , that the expression similar veins and blood vessels has to be construed in ejusdem geneus with the preceding expression disposable and non-disposable Cannula for aorta, vena cavae , that, therefore, this entry would cover only those Cannula which are meant (a) for aorta and vena cavae, (b) for veins and blood vessels similar to aorta and vena cavae and (c) for intra-corporal spaces, that the Venflon IV Cannula, in question, are meant for use only with peripheral veins which are not similar to aorta and vena cavae, that in this regard he places reliance on opinion dated 08/4/04 of Dr. P. Ravindran of DGHS, that in any case, it is well settled law that while interpreting an exemption notification, the benefit of doubt must go to Revenue, that in this regard he relies upon the Apex court s judgment in the case of Liberty Oil Mills (P) Ltd. vs. CCE, Bombay reported in 1995 (75) E.L.T. 13 (S.C.), and Novopan India Ltd. vs. CCE, Hyderabad reported in 1994 (73) E.L.T. 769 (S.C.), tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e analysis of the entry No. 34 in the list No. 37 of the Notification No. 21/02-CUS and beside this, the decision in CCE, Coimbatore vs. Saberwal Surgical (P) Ltd. (supra) was based on a number of certificates of experts produced by the assessee in relation to the product, in question, in the said case, while in the case in hand, undisputedly, the Department has produced a certificate from DGHS, while there is no independent evidence brought on record on behalf of the appellant, that in the stay order, the Tribunal also observed that a decision cannot be read like a statute and is to be understood with reference to what has been decided in a matter and not what may fallow from it, and hence the affirmation by the Apex court of the Tribunal s order in the case of CCE, Coimbatore vs. Saberwal Surgical (P) Ltd. (supra) is not a binding precedent, as that decision did not deal with the entry No. 34 of the list 37 of Notification No. 21/02-CUS. Shri Raha emphasised that IV Cannula being manufactured by the appellant are used only for peripheral blood vessels and not with great arteries or the great veins which are similar to aorta and vena cavae. Shri Raha, therefore, pleaded that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar used in the above-mentioned entry in list 37 of Notification No. 21/02-CUS qualifies only the word veins and does not quality the expression blood vessels . Thus according to the appellant the above-mentioned entry in the list 37 of the Notification No. 21/02-CUS also covers the Cannula for any blood vessel. In this regard, the appellant rely upon the judgment of the Tribunal in the case of CCE, Coimbatore vs. Saberwal Surgical (P) Ltd. (supra), the civil appeal against which has been dismissed by the Apex court vide judgment reported in 2000 (121) E.L.T. A74 (S.C.). In the case of CCE, Coimbatore vs. Saberwal Surgical (P) Ltd. (supra) the Tribunal in para 7 of its judgment while interpreting an identical entry No. 34 in the exemption Notification No. 55/95-CUS had held that the term similar vein in Sl. No. 34 of the notification appears earlier to the term blood vessels and refers only to the term aorta and vena cavae and, therefore, the Cannula used for aorta and vena cavae and for similar veins are different from the Cannula used for blood vessels and that since the Cannula, in question, as per the expert opinion, can be used for blood vessels, the same would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal in its stay order No. 455/09-EX (BR) dated 05/12/09 in respect of appeal No. E/2652/08 EX (BR) filed by the present appellant [2009 (242) E.L.T. 584 (Tri. Del.)]. 8. We have considered the rival submissions on the question regarding the interpretation of the entry mentioned above in list 37 of the Notification No. 21/02-CUS. The entry, in question, is reproduced below - Disposable and non-disposable Cannula for aorta, vena cavae and similar veins and blood vessels and Cannula for intra-corporal spaces. Prior to Notification No. 21/02-CUS there was an identical entry No. 34 in Notification No. 55/95-CUS which has been interpreted by the Tribunal s in its judgment in the case of CCE, Coimbatore vs. Saberwal Surgical (P) Ltd. (supra). In the case of CCE, Coimbatore vs. Saberwal Surgical (P) Ltd. (supra) the point of dispute was as to whether top brand scalp infusion set imported by the assessee M/s Saberwal Surgical (P) Ltd. were eligible for Customs duty exemption under Notification No. 55/95-CUS, the Sl. No. 34 of which covered disposable and non-disposable Cannula for aorta, vena cavae and similar veins and blood vessels and Cannula for intra-corporal spa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Kunhayammed vs. State of Kerala reported in 2001 (129) E.L.T. 11 (S.C.) [para 44], the implication of the dismissal of the civil appeal, even if without recording any reason, is that the Tribunal s order stands merged with the Apex court s order and the same would be a binding precedent. The point as to whether dismissal of civil appeal by the Apex court against lower court s/Tribunal s order without giving any reason is a binding precedent or not, has also been dealt with by the Apex court in its judgment in the case of Medley Pharmaceuticals Ltd. vs. CCE, Daman reported in 2011 (263) E.L.T. 641 (S.C.) in para 32 of which the Apex court has held thus : This court has consistently held that the medical supplies supplied to the Doctors are liable to excise duty. Elaborate consideration may not be forthcoming in these judgments, but, in our view, the issue stands concluded. We say so for the reason that this Court, in catena of cases, has opined that in case, the appeal has been dismissed in the absence of detailed reasons or without reasons, such order will entail the application of the doctrine of merger, wherein the superior court upholds the decision of the lower cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the principle of stare decisis. It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis . 9. In the case of CCE, Coimbatore vs. Saberwal Surgical (P) Ltd. (supra), the Tribunal interpreted the entry No. 34 the Notification No. 55/95-CUS has held that in this entry, the term blood vessels has to be read independent of the expression for aorta, vena cavae and similar veins and that the word similar would not qualify the expression blood vessels and accordingly IV Cannula meant for any blood vessels would be covered by this entry and would be eligible for exemption. This decision of the Tribunal has been affirmed by the Apex court vide judgment reported in 2000 (121) E.L.T. A74 (S.C.) by dismissing the civil appeal. In view of the above judgments of the Apex court, the decision of the Apex court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssels should not be read independently, is accepted, in terms of the exemption notification the following type of disposable and non-disposable Cannula would be eligible for exemption (1) Cannula for aorta and vena cavae (2) Cannula for veins and blood vessels similar to aorta and vena cavae (3) Cannula for intra-corporal spaces. Now the question is as to which are the blood vessels similar to aorta and vena cavae. 10.1 As per the opinion dated 08/12/04 of Dr. P. Ravindran of Directorate General of Health Services aorta and vena cavae are anatomically classified as great vessels and the peripheral arteries and veins are smaller vessels. According to this opinion, while aorta and vena cavae are large blood vessels with thick walls and no valves, the peripherals veins have valves and thus, the peripheral blood vessels are not similar to Aorta and vena cavae. Accordingly, it has been opined that the Cannula for aorta and vena cavae which are used in heart surgery, are totally different from IV Cannula. In his opinion, Dr. P. Ravindran, has discussed the difference between the great blood vessels aorta and vena cavae and the peripheral blood vessels and accordingly has opined that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scular arteries. - Inferior and superior vena cavae are large veins with thick wall with no valves, while peripheral veins have valves. Physiological differentials : The great vessels and the peripheral vessels differ in pressure gradient, volume of blood etc. Cannulas for Aorta, inferior cava and superior cava used in cardiac surgeries are totally different from IV Cannulas in length, diameter of the lumen and shape. These Cannula are big, of the size of drumstick and have holes for drainage of blood and have twisted wires all along its length to prevent twisting/kinking of the Cannula. The CVP Cannulas for measuring the Central Venous pressure are placed in the right atrium through internal jugular or subclavian vein, both of which are large veins. They measure 20 cm for adults and 10 cm for children; if it is through cubital fossa, then it measures 75 cms for adults and 40 cms for children. In contrast, the IV Cannulas are of short length (4-6 cm) with small lumen and cannot be used for monitoring CVP. (iii) If IV Cannulae are used for access to medium/great vessels, the plastic can get detached and then may cause embolism, threatening the life of the patient. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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