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Eastern Medikit Ltd. Versus Commissioner of Central Excise, Delhi-III

2015 (10) TMI 1557 - CESTAT NEW DELHI

Denial of exemption for Intra Venous Cannula (IVC) and Central Venous Catheters (CVC) as per notification no.6/2003-CE as amended, read with notification no.21/2002-customs (List 37, Sl.No.34) - Held that:- Denial of exemption to IVC manufactured by the appellants is solely based on the DGHS opinion. While DGHS elaborately discussed the difference between the aorta and vena cavae on one side and peripheral vessels at the other side, there is no clarity from the records as to what is the scope of .....

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al, arteries and veins. If IVC manufactured by the appellants are used in the similar such arteries and veins, the exemption is certainly eligible. - exemption notification does not prescribe the degree of similarity in respect of "blood vessels" similar to aorta and vena cavae and in a broad sense, even peripheral veins would be similar to vena cavae as both carry deoxygenated blood from various parts of the body to heart and peripheral arteries would be similar to aorta as they carry oxygenate .....

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ntra-corporal spaces. Entry No.33 talks about some specific type of Catheters. Except for claiming that the Catheters manufactured by them can be broadly brought under the category of Cannula, the appellant did not make any corroborative submissions we find that the CVC manufactured by the appellant are meant for delivery of drugs and monitoring of central venous pressure. The Catheters are different from Cannula in structure and function, though there may be certain overlapping in their nature .....

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(T) For the Appellant : None For the Respondent : Shri A K Raha, Adv, Special Counsel ORDER Per B Ravichandran There are 11 appeals filed by the appellants against the orders of the lower authorities. These appeals are taken up for decision together as the issue involved is same. 2. The brief facts of the case are that the appellants are engaged in the manufacture of medical and surgical instruments and appliances. A dispute arose regarding their eligibility for exemption for Intra Venous Cannul .....

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ces were affirmed along with penalty. Aggrieved by the lower authority's orders, the appellant is before us in these appeals. 3. In the appeals, the appellants contested the lower authorities' findings that their product - IVC is not covered by the above mentioned description for exemption. This conclusion to confirm the demands was arrived at based on the reasoning that the disposable/non-disposable cannula are to be used for aorta, vena cavae or two similar veins similar to vena cavae .....

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VC manufactured by the appellant was denied. The appellant contended that the DGHS's opinion does not categorically state anything about the nature of "blood vessels" and the peripheral blood vessels, on which their IVCs are useable, are not discussed in the opinion or by the lower authority. It is not their case that the IVC made by them are useable for aorta or for vena cavae. The appellant's main contention is that IVC manufactured by them is for "blood vessels" wh .....

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to the effect that IVC is inserted into jugular vein, cephalic vein, femoral vein, basilic vein, which are structurally and functionally similar to vena cavae and drained into the same. Finally, it was pleaded that, their case is squarely covered by the ratio of the law laid down in the case of Commissioner of Central Excise, Coimbatore Vs. Saberwal Surgical (P) Ltd. reported in 2000 (117) ELT 400 (Tribunal) and Medisphere Marketing Pvt. Ltd. Vs. CCE reported in 2001 (131) ELT 608 (Tribunal-Del .....

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ickinson India Pvt. Ltd. case, the Tribunal held that denial of cross examination of DGHS officials vitiated the judicial proceedings. In the present case, there is no request for any such cross examination. Secondly, the second item - CVC is clearly a distinct product in trade and commerce and also as per Tariff and cannot be interchangeably used with Cannula as such. The appellant is not eligible for exemption under Sl.No.34 of List 37 of notification no.21/2002-Cus for CVC. The appellant orig .....

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ding in nature. It is his argument that the blood vessels similar to aorta and vena cavae are ought to be great or main blood vessel such as pulmonary artery/vein coronary artery/veins. These submissions made by the Revenue was over-looked in M/s. Becton Dickinson India Pvt. Ltd.. He insisted that the IVC in dispute is meant for peripheral blood vessels and are not covered by entry for exemption mentioned supra. 8. We have heard the Special Counsel for the Department and examined the appeal reco .....

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Surgical (P) Ltd. (supra), on an identical issue, holds good. It was also noted that the civil appeal filed against the Tribunal's decision in that case was dismissed by the Hon'ble Supreme Court reported in 2000 (121) ELT A-74 (SC). The Tribunal emphasized that the word "similar" used in the entry qualifies only the word "veins" and does not qualify the word "blood vessels" and thus, the expression, "blood vessel" has to be read independent of the .....

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not disputed. The department's contention is that the Cannula is not eligible for exemption as per the terms of the above entry. It is common knowledge that the circulator system of the body consisted of arteries, veins and capillaries. It is also not disputed that there are different types of arteries and veins and aorta and vena cava are anatomically and physiologically different from smaller peripheral, arteries and veins. If IVC manufactured by the appellants are used in the similar suc .....

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blood vessels" is to be taken independently. We follow the reasoning as the term "blood vessel' is preceded by a second 'and'. If ld. Special Counsel's plea is to be accepted the wordings could have been "canula for aorta, vena cavae, similar veins and blood vessels". This is not the case. As pointed out in M/s. Becton Dickinson case, the exemption notification does not prescribe the degree of similarity in respect of "blood vessels" similar to aorta .....

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