TMI Blog2020 (7) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be inferred that the notification was wrongly worded and therefore, it is to be interpreted to mean Skin Barriers, Micropore Surgical Tapes is not acceptable. There is no ambiguity in the notification and there is no need to interpret the notification by supplying what is assumed to be missing in the notification. The impugned order is correct as far as it holds that the items imported by the appellants are not eligible for the exemption contained in the notification No.21/2002-Cus dated 01.03.2002. The appellants argue that another part of the notification mentions bag closing clamps karaya seals paste or powder whereas no such products are available and therefore, it need to be understood that notification misses out on certain symbols like (,). We find that as the items described therein are not under discussion, we need not turn our attention to the same. Time Limitation - penalties - HELD THAT:- The fact that the appellants are importing from a long period is not disputed. It is not the case of the department that all the consignments were cleared under self-assessment procedure. It is not the contention of the Revenue that the impugned products were not sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00,000 on Shri Kulveen Singh Bali; Hence, the present appeals C/25625/2013, C/25676/2013 C/25677/2013. 2. Shri Shivdass, Senior Counsel, appearing for the appellants, traces the history of the exemption for surgical tapes and submits that the Appellants earlier claimed exemption under Sl. No. 22B of Heading B of Notification No. 208/1981-Cus dated 22.09.1981, on the strength of certificates dated 15.9.1992 by the Directorate General of Health Services to the effect that they were Lifesaving items covered under SI.No.22B of Part B of Customs Notification No.208/1981; after rescission of Notification No. 208/1981-Cus, the Ostomy products (Appliances) for managing Colostomy, Ileostomy, Ureterostomy, Ileal Conduit Urostomy Stoma, including skin barriers micropore surgical tapes continued to be exempted under various Notifications; the Notifications also exempted from duty other medical equipment certified by the Director General of Health Services to be lifesaving equipment; the Appellants continued to claim concessional rate of duty in respect of the imported Micropore. Transpore and Tegaderm, under Sl. No. 363 of Notification No. 21/2002 dated 01.03.2002, as mentioned at Sl. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Equipment and other goods, specified in List 37 and their accessories were thus subjected to effective rate of Basic Customs Duty of 5% and wholly exempted from additional duty of customs leviable under Sec.3(1) of the Customs Tariff Act. List 37 of the Customs Notification No.21/2002had 111 entries out of which Sl.No.22 reads as under: ''Ostomy products (Appliances) for managing Colostomy, Ileostomy, Ureterostomy, Ileal Conduit Urostomy Stoma crises such as bags, belts, adhesives seals or discs or rolls adhesive remover, skin barriers micropore surgical tapes, bag closing clamps karaya seals paste or powder, irrigation sets, plastic or rubber faceplates, flanges, male or female Urinary incontinence sets, skin gels in parts or sets' Sl.No.22 of List 37 may be broken up as under: - Ostomy products (appliances) - Such as bags, belts, adhesives seal or discs or rolls adhesive remover, skin barriers micropore surgical tapes, bag closing damns karaya seals paste or powder, irrigation sets, plastic or rubber faceplates, flanges, male or female urinary incontinence sets, skin gels, in parts or sets. - for managing - Colostomy, Ileostomy, Urostomy and Uretero ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Notification No.208/1981. (iv). Extracts of literature wherein use of 3M tapes in managing ostomy is discussed. (v). Copy of purchase orders, sale invoices and certificates from the hospitals and the letter from Ostomy Association of India. B.10 it can be seen there from that the products have in fact been used for managing ostomy cases and therefore, the products qualify as 'ostomy products (appliances)' eligible for exemption. 7. Learned senior Counsel submits that without prejudice to the above submission that the imported tapes are actually used for ostomy care, the Notification provides exemption to all 'Ostomy products (appliances) for managing stoma cases' and nothing can be read into it to grant exemption only on proving that the products have actually been used for managing stoma; the expression 'ostomy products for managing ostomy' is to be interpreted as an item intended for use or capable for use as an ostomy appliance and the exemption would be extended. Once it is established that the products are 'Ostomy appliances' capable of being used in managing the stoma cases (including the four types mentioned), there is no req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product called as -bag closing clamps karaya seal paste or powder'; It makes sense only it' the expression is read as bag closing clamps', 'karaya seal, paste or powder; similar is the case of 'skin barriers' and 'micropore surgical tapes. Literal meaning of a 'skin barrier' is that the product acts as a 'barrier' to the skin i.e. it does not allow anything to come in contact with the skin; whereas, 'micropore' means having pores'; surgical tapes are manufactured with minute pores so that the skin can breathe through it; thus, the entry should aptly read as 'skin barriers' and 'micropore surgical tapes; in the product description of 1- IOL- 3722 the words 'skin barrier' and 'porous paper tape' are separated by a comma; this evidences that there is no product answering to the description 'skin barrier micropore surgical tape'; this further supports the claim of the Appellants that the expression skin barrier micropore surgical tape' used in the Notification ought to be separated by a comma and exemption should be granted to both 'skin barrier' and 'micropore tapes ; further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atient; therefore the Appellant would anyway be entitled to the exemption under Sl.No.363 (B); as held in the impugned Order, the impugned tapes are used to additionally secure the ostomy appliances such as bags, clamps etc. in place; thus the impugned tapes are accessories to various appliances listed in List 37; being accessory to medical equipment mentioned in Sl. No. 363(A) are entitled to exemption under Sl.No. 363(B). Learned counsel submits that alternatively, Sl. No. 365 of the Notification No. 21/2002 provides exemption to 'Life saving medical equipment including accessories or spare parts or both of such equipment' subject to production of certificate from the DGHS that the products imported are 'Lifesaving goods'; DGHS have given necessary certificates to the appellants; it is settled law that the benefit of exemption can be claimed at any stage as held in Share Medical Care Vs UOI 2007 (209) ELT 321 (SC) 11. Learned senior Counsel submits that extended period is not invocable in the case; Show Cause Notice is issued on 30.09.2011 demanding duty for the period October 2006 to February 2010; packing material of the products clearly shows the various app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant; the sine-qua-non for the item to be considered under this category is as to whether these goods are having the prerequisite characteristics of a Skin barrier along with the microporous properties, as the primary objective of the products brought under the category of Ostomy appliances are products which are used to create the OSTOMY POUCH or for the special Care of the Skin around the Ostomy area; skin care in such surgeries is of utmost importance as the fecal and urinary content that empty into the pouches are to be prevented from affecting the skin around the pouches or Ostomy area so as to not cause any irritation or excoriation; skin Barriers are essentially coverings which have the property of not allowing Microbes or External agents from reaching the Skin and by way of this characteristic would not allow the Ostomy exudates to reach the skin surrounding the Ostomy area and thus maintain the integrity and quality of the skin as explained by OIO at Para 5.1. 13.1. He further submits that while Micropore Tapes might have been developed by the Appellant, their primary use or application is to act as adhesive tapes, but being hypoallergenic (less prone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e piece 5600 (at Page 398)and Coloplast one piece -5801 which also are described as flexible skin barrier and tear proof microporous tape for double security are mentioned; it is such products which have the aforesaid properties of Skin Barrier Micropore Surgical Tape and the same were not brought to the notice of the Chennai Bench; It is these tapes and such similar products which have a primary application in the management of Ostomy that can be considered for the exemption; the usage of such products elsewhere also should not hamper the eligibility and to this extent the view of the Chennai bench would be correct, but when the products under consideration are merely micropore tapes without the skin barrier property they would fall outside the purview of the exemption; the products viz Micropore and Transpore under consideration cannot even prevent water from soaking them and can come off the skin easily if exposed to water whereas the essential characteristic of all the Ostomy products in the list are products which have the special property of absorbing or soaking up the water or discharge of the ostomy contents; this is evident from the explanation of items such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. -Post surgical dressing- protects closed, clean surgical wounds and donor sites -Lacerations, abrasions and burns, small incisions and excisions especially in areas are difficult to dress -Superficial and partial thickness wounds -Light to moderate draining wounds -Catheter site cover Though the said product has absorbent properties and protective properties, it is submitted that the benefit is denied due to nonmention of the application for ostomy purposes in the product; thus it can be seen that the first two products do not have any skin barrier or absorbent properties and cannot definitely fall within the entry claimed as Skin Barrier Micropore Surgical Tapes but are only porous tapes; M/S 3M, USA principals of the appellants described the products as Non- Sterile Adhesive Tapes and not as Skin barriers as declared in the Form 40 for obtaining the clearance for import; it was so certified by the Drug Controller General of India (DCGI). 15. He submits that the certificates from DGHS submitted by the appellant in support of their claim are certificates issued under Notification 208/81 and as lifesaving items and would have no releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue in question, we find it is useful to have a look at the notification No. 21/2002 dated 01/03/2002. The relevant headings of the notification are as follows: Sl. No. 363A 90 or any Chapter The following goods namely: (A) Medical equipment (excluding Foley Balloon Catheters) and other goods, specified in List 37. List 37 S. No.22 Ostomy products (Appliances) for managing Colostomy, Illcostomy, Ureterostomy, Illeal Conduit Urostomy Stoma cases such as bags, belts, adhesives seals or discs or rolls adhesive remover, Skin Barriers Micropore Surgical Tapes , bag closing clamps karaya seals paste or powder, irrigation sets, plastic or rubber faceplates, flanges, male or female urinary incontinence sets, skin gels, in parts or sets. On going to the above notification it is seen that Skin Barriers Micropore Surgical Tapes is mentioned as a single heading whereas, the appellants would like to read it as Skin Barriers , Micropore Surgical Tapes holding that there is no product known as Skin Barriers Micropore Surgical Tapes ; the expression was similar in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rol, soft backing for comfort, order proof film . Further, it is observed from various patents detailed in the SCH that medical requirement of protecting the peristomal region from right around the stoma to the nearby surrounding skin from stomal exudates has been addressed by the products with pre-attached adhesive microporous tapes with the pouches/bags. In response, the noticee has contended that the new invention which is claimed by the manufacturer as capable of acting both as skin barrier and as porous paper tape and the claim that it protects peristomal skin does not mean that the adhesive tapes need not be used for securing the pouch. They have also stated that there is no evidence that whole world of ostomates have stopped using other products or that the earlier products have lost their relevance and use. I find that there is a contradiction inherent in the submission of the noticee-tape and on the other hand it is their contention that even if it is a new invention, it does not mean that the earlier products have lost their usage/relevance. Further, the patent applied for the so called new product dates back to 1997 and was, therefore, in existence for about 10 years be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be a comma missing in the description Skin Barriers Micropore Surgical Tapes , it is not open to me to supply the same. In the case of The Commissioner of Sales Tax, Uttar Pradesh Vs. M/s. Parson Tools and Plants, Kanpur [(1975) 4 SCC 22], the Hon ble Supreme Court has held as under: Even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it In this regard, the judgement of Hon ble High Court of Guwahati in the case of Sankar Tea Co. Ltd. and Others Vs. Collector of Central Excise, Shillong and others [1985 (21) ELT 679 (Guwahati)] also provides useful guidance. In the said case, the Hon ble Court was dealing with the issue of rate of Central Excise duty chargeable on the tea produced in District of Dibrugarh in the State of Assam. Briefly stated, the Central Government by a notification dated 1.5.1970 divided the tea growing areas into Zones and fixed the rate of duty on tea produced in the said areas. At the relevant time, Dibrugarh was a sub-division in the District of Lakhimpur in Zone V. As per notification dated 22.9.197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dilip Kumar Company 2018 (361) ELT 577 (SC) that 22. At the outset, we must clarify the position of plain meaning rule or clear and unambiguous rule with respect of tax law. The plain meaning rule suggests that when the language in the statute is plain and unambiguous, the Court has to read and understand the plain language as such and there is no scope for any interpretation. This salutary maxim flows from the phrase cum inverbisnullaambiguitasest, non debetadmittivoluntatisquaestio . Following such maxim, the Courts sometimes have made strict interpretation subordinate to the plain meaning rule [Mangalore Chemicals case (Infra para 37).], though strict interpretation is used in the precise sense. To say that strict interpretation involves plain reading of the statute and to say that one has to utilize strict interpretation in the event of ambiguity is self-contradictory. In view of the above, we find that the impugned order is correct as far as it holds that the items imported by the appellants are not eligible for the exemption contained in the notification No.21/2002-Cus dated 01.03.2002. The appellants argue that another part of the notification mentions bag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Equipment subject to production of a certificate from DGHS to the effect that the imported goods are lifesaving medical equipment; he submitted that the appellants have produced such certificates and have a right to claim the same even though the same was not claimed at the time of filing bills of entry. We find that per contra the learned Authorised Representative submits that the certificates from DGHS submitted by the appellant in support of their claim, are certificates which have been issued under Notification 208/81and would have no relevance to the Notification 21/2002-Cus Sl. No.363 A and the claim has to be considered only as per the current notification as the requisite certification by DGHS under the current Notification is not produced. We find that the certificates are issued in 1990s and have no mention of the impugned imports. 26. The appellants have relied upon the decision of coordinate bench, at Chennai in the case of Sutures India Pvt Ltd (Supra), stating that the tribunal has gone into the imports of similar products and decided that the applicability of notification has been decided in appellants favour. Per contra, the Learned Authorised Representative s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, the distinction between the impugned products and the items eligible for exemption has been clearly established. It was also established that products which can be described as Skin Barriers Micropore Surgical Tapes exist. Therefore, having considered the facts of the case, we find that the department could satisfactorily demonstrate the twin points that the impugned goods do not satisfy the description given in the Notification and that the products mentioned in the Notification exist in reality. We find that there is no ambiguity as far as the description of the items in the notification and that the impugned goods do not satisfy such description so as to be eligible for exemption. As the wordings of the notification give meaning which is not ambiguous, we find that the Apex Court s judgment in Dilip Kumar case (supra) is binding and needs to be followed. 27. We also find that Apex Court in the case of Srikumar Agencies Civil Appeal Nos. 4872-4892 of 2000, decided on 27-11-2008 observed that 5. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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