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M/s Bayer Pharmaceuticals Pvt Ltd Versus Commissioner of Customs, Mumbai

2015 (11) TMI 943 - CESTAT MUMBAI

Classification of Glucose meters - Classification under Customs Tariff Heading 90.18 or under Heading 90.27 - exemption from basic customs duty was claimed under notification number 24/05-Cus dated 1.3.2005 - Held that:- essential character of the goods in both cases is to draw the blood and test it for glucose content. With changes in technology, the glucose meter can be expected to become more sophisticated and compact without change in the essential function. The essential function of a Gluco .....

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e under heading 90.18 whereas the Glucose meter without strips will get classified under heading 90.27. - product in question is not an instrument which is generally used in laboratories. Therefore by virtue of the Explanatory Note under Heading 90.18, the impugned goods, that is Glucose meters are classifiable under heading 90.27. - impugned goods namely Glucose meters are classifiable under heading 90.27 and are eligible for exemption under notification No. 24/05-CUS dated 01.03.2005. - Impugn .....

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. 2. The facts of the case are that the appellant imported blood Glucose meters having the brand-name 'Breeze 2 Meter'. The imported product consisted of a blood glucose meter and the users guide. The classification of the goods was sought under tariff item number 902780.90 which covers instruments and apparatus for physical or chemical analysis. And exemption from basic customs duty was claimed under notification number 24/05-Cus dated 1.3.2005. The Department did not accept this classi .....

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ter is classifiable under Heading 90.27 as an instrument for chemical analysis and not under Heading 90.18 as an instrument or appliance used in medical science. This has resulted in judicial indiscipline. He relied on the Supreme Court judgment in the case of Birla Corporation Ltd. vs. Commissioner 2005 (186) ELT 266 (SC). According to him, the product in question in the present case is identical to the product in respect of which the order dated 12.11.2008 was passed by the Commissioner (Appea .....

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on this issue which classifies similar products under Heading 90.27. He also referred to the Canadian International trade Tribunal which took the view that glucose testing devices fall under Heading 90.27 only. And these countries like India, also follow the Customs Tariff based on the WCO HSN Explanatory notes. But the Commissioner in the impugned order held that the earlier Order of Commissioner (Appeals) as well as the U.S. Customs and Canadian Tribunal Rulings dealt with complete glucose mo .....

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any role in testing and analyzing of the sample by the glucose meter. To substantiate this point, he referred to Sr. No. 65 of notification No. 6/2006 which specifies that "Blood Glucose monitoring system (Glucometer) and test strips" will be subject to SAD duty of 4%. According to him, this indicates that the glucose monitoring system refers to glucometer only. 3.2 The learned Counsel argued that HSN Explanatory Note to Heading 90.18 state that the goods therein are handled by profes .....

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ification of the impugned goods are extracted below: 9027 - instruments and apparatus for physical or chemical analysis (for example, polarity meters, refractory meters, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion............... 9018 instruments and appliances used in medical, surgical dental or veterinary sciences................... The learned Counsel showed us the product imported i.e. those which are cove .....

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the view that the essential character of the goods in both cases is to draw the blood and test it for glucose content. With changes in technology, the glucose meter can be expected to become more sophisticated and compact without change in the essential function. The essential function of a Glucose meter is to draw the blood as well as test the blood. The testing of blood and then its analysis for indicating blood sugar content as revealed by the Glucometer is undisputedly the outcome of a chem .....

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e may refer to the HSN Explanatory Notes and the Customs Tariff Act. The General Rules for the Interpretation of the Customs Tariff Act provide that (Rule 1) 'for legal purposes classification shall be determined according to the terms of the Headings and any relative Section or Chapter notes...' We find in this case that heading 90.27 covers instruments for chemical analysis. This heading appears to be more specific than the description of heading 90.18 which covers instruments used in .....

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