TMI Blog2018 (8) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... hich increases the capacity of the machines to cater to the requirements of the patients as and when such a need arises. The ventilatory system appears to be part of the design of the machines; therefore, it has to be held that the ventilator is part of the anesthesia systems imported by the appellants - exemption Notification is clear that the exemption is available for the ventilatory system used with anesthesia operators while there is no doubt in our minds that exemption is available for the ventilatory systems, used with the anesthesia systems. The impugned goods are ventilators which are used with Anesthesia Systems. The predominance of the ventilator/Anesthesia System is not the context of the Notification. As long as, they are ventilators and used with Anesthesia Systems, exemption should be available - appeal allowed - decided in favor of appellant. - C/322/2009-DB - Final Order No. 21137 /2018 - Dated:- 14-8-2018 - HON'BLE SHRI S.S GARG, JUDICIAL MEMBER And HON BLE SHRI P. ANJANI KUMAR, TECHNICAL MEMBER Mr. B. V. Kumar, Advocate For the Appellant Dr. J. Harish, AR For the Respondent ORDER Order Per: P. Anjani Kumar M/s. Datex Ohmeda (India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Delhi Heart and Lung Institute, Department of Cardio-thoracic and Vascular Surgery, New Delhi. The learned Commissioner (A) has completely ignored that technical opinion which cannot be brushed aside unless displaced by an equally competent expert opinion as held in the following cases: Bharat Textiles Processings vs. CC, Tuticorin: 2004 (171) ELT 86 (T) Wipro GE Medical Systems Ltd. vs. CC: 2006 (206) ELT 400 (T) Intercontinental (India) Ltd. vs. UOI: 2003 (154) ELT 37 (Guj.) 2.2 The learned counsel has also submitted that the issue is no longer res integra since the issue has been decided by the Tribunal in the following cases: CC (I G), New Delhi vs. Datex Ohmeda (India) Ltd.: 2009 (241) ELT 359 (Tri.-Del.) Datex Ohmeda (India) Ltd. vs. CC, Bangalore: 2010 (252) ELT 289 (Tri.-Bang.) Wipro GE Medical Systems Pvt. Ltd. vs. CC, Bangalore: 2010 (253) ELT 234 (Tri.-Bang.) Final Order No.A/90651/17/SMB dt.2.3.2017 passed by CESTAT, Mumbai. 3. The learned Departmental Representative has submitted that as per the brochures the S/5 Aespire is essentially an anesthesia machine which has a facility for ventilator and whatever func ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot make out a new case by introducing fresh evidence which was not cited in the earlier proceedings. 5. Heard both sides and have gone through the records. The brief issue for consideration in the instant case is that of the applicability of the Notifications cited supra to the appellants on the import of the impugned goods. We find that Notification No.21/2002-cus. dated 1.3.2002 at Sl. No.363 describes a rate of duty of 5% for the goods (A) Medical equipments (excluding Foley Balloon Catheters) and other goods specified in List 37 falling under Chapter 90 or any other Chapter. List No.37, appended to the Notification mentions at Sl. No.30, the equipments eligible for Notification to be ventilator used with anesthesia apparatus. We find that similar are the provisions contained in Notification No.6/2006-CE dated 1.3.2006 which was claimed by the appellants for the purpose of payment of CVD. 5.1 Going by the submissions of the learned counsel and the departmental representative and looking at the available literature, manuals, etc., on record, it appears that the impugned equipment is composite equipment. Whereas the department sees the equipment to be an anesthesia machi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tariff schedules and not in respect of the applicability of any exemption Notification. 5.5 We find that the case of Dilip Kumar Company Others cited supra by the learned AR is on the issue of applicability of exemption Notification. We find that the Hon ble Supreme Court has categorically stated that in case of ambiguity alone the benefit of interpretation should go to the Revenue. The learned counsel for the appellants has submitted that this very Bench has decided the issue vide Final Order No.20419 20421/2018 dated 12.2.2018 in respect of the very same appellants understandably for previous imports. We find that the Tribunal did not find any ambiguity in the Notification. The Bench relied upon the Delhi Tribunal s order in appellant s own case as reported in 2009 (241) ELT 369, as quoted by this Bench vide Final Order No. 20419 20421/2018 dated 12.2.2018, the Delhi Bench of the Tribunal has observed as follows: 6.2 The Department wants to consider the ventilator with anesthesia apparatus as a mere anesthesia delivery system. The respondents want to treat the same as ventilator system with in-built anesthesia device. The Notification grants exemption to ventilator u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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