TMI Blog2018 (10) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... illings, chemical contraceptive and Gel preparations used in human or veterinary medicines as a lubricant for parts of the body for surgical operations or physical examinations or as a coupling agent between the body and medical instruments. Chapter No. 9021 covers orthopaedic appliances including crutches, surgical belts and trusses, splints and other fracture appliances, artificial parts of the body, hearing aids and other appliances which are worn or carried, or implanted in the body to compensate for a defect or disability - it is found from the expert opinion of the Professor Head of Rheumatology of Nizam s Institute of Medical Sciences that the imported product is an absorbable implant in the knee joint for pain relief and improvement of joint mobility of the knee joints. There is nothing in this order to show why the goods which are imported cannot be classified as medical devices as claimed by the appellant. The literature produced by appellant as well as expert opinion produced by them clearly show that the goods in question are known as and used as implantable medical devices by doctors. Customs Tariff heading 3006 covers Gel preparations designed for humans as lub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as listed in the annexure to the show cause notice. Importer claimed classification of these as medical devices under Customs Tariff No. 90214090 and claimed the benefit of exemption notification No. 21/2002 (S.No. 370) and cleared the goods at nil rate of duty as applicable. It has been alleged in the show cause notice that the goods imported by appellant are nothing but Sodium Hyalauronate sterile 1% which is correctly classifiable under CTH 3004 9099, chargeable to duties as per S.No. 80 of Customs Notification No. 21/2002. It has been alleged that the imported item Sodium Hyalauronate solution 1% has not been correctly mentioned either in the description on the invoice or in the bills of entry. Thus, they have wrongly availed the benefit of exemption notification No. 21/2002 by wilfully suppressing the actual description of the goods. It was, therefore, proposed to re-assess the 17 bills of entry invoking the extended period of five years and recover duty along with interest from the appellant assessee. Further, it was also proposed to impose penalty under section 114 A of Customs Act, 1962. The assessee s appeals are against this order. 2. In respect of another bill of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant in the knee joint for pain relief and improvement of joint mobility in patients suffering with OA of the knee joint. The product is absorbed in due time by the lymphnode system of the body. The device is indicated for pain management and improvement of joint mobility of the knee joint. Dated 6th September, 2005 Dr. G. Narasimulu 5. He further produced before us an extract from Medical text book published by Wahid Khan and others which gives a table of classification of various Implantable Medical Devices. This indicates that there are primarily three types of medical devices (a) those which give structural or mechanical support (b) those which give functional support and (c) those which give localised drug delivery. Hyaluronate acid has been classified as the one giving functional support. He further relied on the case of Jhonson Jhonson Ltd. vs. CCE [1997(92) ELT 23 (SC)] in which it was held that surgical material should be classified under chapter heading No. 90.18 rather than heading 3005.90. He further contended that their product was classified as drug by Drug Controller General of India (DCGI) da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct in the bills of entry and the literature furnished by them. We proceed to examine the issue of classification of the imported goods. Chapter heading No. 3006 includes products such as Sterile laminaria, blood grouping reagents, diagnostic reagents designed to be administered to the patients, dental cements and other dental fillings, chemical contraceptive and Gel preparations used in human or veterinary medicines as a lubricant for parts of the body for surgical operations or physical examinations or as a coupling agent between the body and medical instruments. Chapter No. 9021 covers orthopaedic appliances including crutches, surgical belts and trusses, splints and other fracture appliances, artificial parts of the body, hearing aids and other appliances which are worn or carried, or implanted in the body to compensate for a defect or disability . We find from the expert opinion of the Professor Head of Rheumatology of Nizam s Institute of Medical Sciences that the imported product is an absorbable implant in the knee joint for pain relief and improvement of joint mobility of the knee joints. We also find from the literature submitted by Ld. Counsel that one class of ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication in the knees. Therefore, the product is to be correctly classifiable under Customs Tariff Heading 9021 as an implantable medical device. We, therefore, find no infirmity in the claim of classification by the importer. At any rate, even if both Customs Tariff Heading 3006 and 9021 are considered to be applicable, 9021 being the later entry prevails. In conclusion, we find that the imported goods are classifiable under Customs Tariff Heading 9021. Consequently, the demand of duty, interest and penalty do not survive. Therefore, the Order-in-Appeal No. 31/2009 (H-II) Cus, dated 08.07.2009 passed by the first appellate authority is upheld and Revenue s appeal against this Order-in-Appeal is rejected. 9. As far as the limitation is concerned, once the appellant has declared what is being imported in the invoice and the Bill of entry, they cannot be faulted for claiming a classification which, according to them is correct. Nothing prevented the assessing officer from seeking further literature and information and re-determining the classification if the classification claimed in the Bill of Entry is felt to be incorrect. Clearly, there is no evidence on record that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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