TMI Blog2017 (3) TMI 1275X X X X Extracts X X X X X X X X Extracts X X X X ..... also, certificate of TUV Rheinland (applicable authority) has certified the goods as medical device - goods are properly classified under Chapter 9018 - appeal dismissed - decided against Revenue. - Customs Appeal No. 52933 of 2015 - Final Order No. 52525 /2017 - Dated:- 24-3-2017 - Hon'ble Ms Archana Wadhwa, Member (Judicial) And Hon'ble Mr. V. Padmanabhan, Member (Technical) Shri Govind Dixit, AR for the Appellants Shri Deepak Suneja and Shri Lalitendra Gulani, Advocate for the Respondent ORDER Per Archana Wadhwa Being aggrieved with the order passed by Commissioner (Appeals), Revenue has filed the present appeal. We have heard Shri Govind Dixit, learned DR appearing for the Revenue and Shri Deepak Suneja and Shri Lalitendra Gulani, leanred Advocate appearing for the respondent assessee. 2. As per the facts on record, the appellants filed Bill of Entry No. 7639872 dated 9.12.2014 for goods declared as Thermacool Thermage Radio Frequency Therapeutic device and its accessories classified under CTH 90189099, having assessable value of ₹ 30,17,740/- and claimed benefit of Customs Notification No. 12/2012; Central Excise Notification No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H 9018 state that this heading covers a very wide range of instruments and appliances which, in the vast majority of cases, are used only in professional practice (e.g. By doctors, surgeons, dentists, veterinary surgeons, midwives), either to make a diagnosis, to prevent or treat an illness or to operate, etc. instruments and appliances for anatomical or autoptic work, dissection, etc. are also included, as are under certain conditions, instruments and appliances for dental laboratories. On the other hand, CTH 85437093 covers professional beauty care equipment . Hence, the issue is whether Thermage CPT system can be considered as a device for medical treatment of illness related to skin, by using RF energy to be used by a qualified doctor only; or to be considered as professional beauty care equipment not being covered by chapter 90189099. I find that the Learned Adjudicating Authority did not dispute the description provided in the Bill of Entry, corresponding invoice, packing list and Bill of Lading, which indicate that the goods were referred to as Thermage Radio Frequency Therapeutic Devices . Once the goods are accepted to be therapeutic devices , the issue of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pment is specifically aimed at improving the appearance of the skin for cosmetic purposes only and not for curing any disease or deformity of the skin. It is also not meant for any medical diagnosis or surgery. (iii) Doctors do not use these equipments in any hospitals because no disease is cured. Beauty clinics employ doctors where this equipment is used since doctors have knowledge about skin conditions which are not skin deformities and correction of these conditions improves the condition of the skin by making it smooth. (iv) The original Adjudicating Authority made relevant enquiries from these skin and beauty clinics and found that these clinics are cosmetic clinics only which are using Thermage primarily for anti-aging and beauty enhancement care. These tasks are being performed in the clinics by trained practitioners/ professionals/ Doctors only to ensure that the collagen of the skin is strengthened so as to give this skin a smooth/sleek look that can held an individual feel younger. (v) Revenue s contentions are based upon Rule 3 of the General Rules in the interpretation of the First Schedule of the import tariff. The Revenue s views are that the classification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng disposable accessories are connected to the System: a canister of cryogen, a treatment tip, and a return pad. Treatment tips are available in several different sizes and geometries; they are the only sterile accessory. The skin marking paper and coupling fluid are disposable accessories applied to the patient; not connected to the system. 12. The console delivers radiofrequency energy and controls the delivery of cryogen to the skin via the handpiece and treatment tip. The console initially delivers the cryogen to the handpiece and treatment tip for a specified period of time and then continues delivery of cryogen while supplying RF energy. After delivery of RF energy, the system continues to supply cryogen to minimize retrograde heating of the superficial layers of the dermis. The cooling and heating periods and RF energy levels are provided in user-selectable, but pre-defined combinations of cryogen flow rate, time and RF current and energy. The front panel of the system console allows the adjustment of treatment settings and provides treatment status information to the operator. 13. After considering the submissions made by both the sides and after examining the lite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogy that works on patient s bodies while working with their mind. The said equipment cannot be used by a simple beauty parlour person but can only be used by the qualified Doctors. As is clear from the said technical material produced by the assessee, it stand clearly marked on the said technical literature that the goods are for use by Registered Medical Practitioner, Hospital or a laboratory only. The revenue has not denied the said fact that apparatus in question can be only used by Doctors. In such a scenario, we agree with the finding of the Commissioner (Appeals) that the goods cannot be considered to be beauty care equipment and have to be held as a device for medical treatment for illness relateable to skin. 18. We may draw support for the above conclusion from the Tribunal s decision in the case of New Look Cosmetic Laser Centre vs. CC Mumbai [2006 (200) ELT 336 (Tri-Mum)] holding that Ruby star Surgical laser used for treating unwanted hair on the patient body is a medical equipment classifiable under heading 9018 and not under Chapter Heading 8510 as hair removal appliances. Similarly, the CBEC vide its Circular No. B-11/1/2002-TRU dated 1.8.2002, while explaining ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
