TMI Blog2021 (9) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 and autoptic work, dissection etc. and for dental laboratories (under certain conditions) are also included in this Chapter Heading. It has specifically been mentioned that this Chapter Heading does not cover Microscopes etc. of heading 9011 or 9012 - The Explanatory Notes for Chapter Heading 9018 also provides that the group Instruments and appliances for human medicine and surgery includes Ophthalmic instruments , which falls into various categories, including Diagnostic instruments such as opthalmoscopes; binocular loupes with head bands and binocular type microscopes, consisting of a microscope, an electric lamp with a slit, and a head rest, the whole being mounted on an adjustable support, for the examination of the eyes; tonometers (for testing the intra-ocular tension) eye specula . The MM System is also known as IVF technology in the medical world; that the MM System is a device which is used to physically interact with a sample under a microscope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant : Shri N. K. Gupta (Advocate) The appellant M/s. Shivani Scientific Industries Pvt. Ltd. has been engaged in the supply of medical equipment viz. Micro Manipulator System (hereinafter referred to as MM System ) which is Intra Cytoplasmic Sperm Injection (herein after referred to as ICSI ) with ejaculated, epidymal or testicular spermatozoa used in Assisted Reproductive Technology (herein after referred to as ART ) Procedures . The appellant used to receive the orders for supply of MM System from various customers and has been selling the same with reference to the purchase orders. 2. The appellant has filed an application for Advance Ruling before the Gujarat Authority for Advance Ruling (herein after referred to as the GAAR ), wherein it has been stated that the MM System is also known as IVF technology in the medical world and in common / trade parlance, it is also called Micro manipulator ; that globally micro-manipulator falls under HSN 9018 but in India there is confusion as to whether it falls under HSN 9018 or 9011; that they are of the view that the product in question should be classified under Chapter Heading 9018 and not under Chapter Headin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Micromanipulator System ? 6. The GAAR, after considering various submissions of the appellant and examining the competing entries under Chapter Heading 9011and 9018 of the First Schedule to the Customs Tariff Act, 1975 (herein after referred to as the CTA, 1975 ), vide Advance Ruling No. GUJ/GAAR/R/22/2020 dated 2.7.2020, held as follows - The product Micromanipulator system manufactured and supplied by M/s. Shivani Scientific Industries Pvt. Ltd. is classifiable under Tariff Item No. 9011 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975). The said product is covered under Entry No. 184 of Schedule-IV of Notification No. 01/2017-Central Tax (Rate) dated 28.06.2017 (upto 14.11.2017) and under Entry No. 411F of Schedule-III of Notification No. 01/2017-Central Tax (Rate) dated 28.06.2017 (as amended) (w.e.f. 15.11.2017) issued under the CGST Act, 2017. Applicability of the rate of GST on the said product would be 28% (14% SGST + 14% CGST) upto 14.11.2017 and 18% GST (9% SGST + 9% CGST) with effect from 15.11.2017. 7. Aggrieved by the aforesaid Advance Ruling, the appellant has filed the present appeal. 8.1 The appellant has submitted that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure through micro-manipulator wherein the role of microscope is to magnify and nothing beyond that. 8.5 The appellant has referred to Chapter Note 3 of Chapter 9 read with Notes 3 and 4 to Section XVI and has submitted that the principal function is to carry out IVF by ICSI Procedure with the help of Micromanipulator, the said device, although equipped with the inverted microscope, shall not be classifiable under Chapter Heading 9011 as Surgical Microscope as the main function is not magnification but the ICSI Procedure, which is carried out by the Micromanipulator and the microscope merely magnifies the objects so as to carry out the procedure in a proper manner. Thus, by application of Section Note 3 to Section XVI, the impugned goods merit classification under Chapter Heading 9018 and not under Chapter Heading 9011. 8.6 It has been further submitted that the Micromanipulator and the inverted Microscope are individual components of the MM System and are both meant to contribute to the principal function of the Micromanipulation System, which is to carry out the IVF by ICSI procedure; that it does not matter whether the same are separate or joined in any manner. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uling be considered as 28.09.2020 as the same was not communicated at address mentioned in Form GST ARA-01 as well as to the office of the authorized representative and it was collected on 28.09.2020. FINDINGS : 11. We have carefully gone through and considered the submissions made by the appellant in the grounds of appeal and at the time of personal hearing as well as Advance Ruling given by the GAAR and other materials available on record. 12. The issues involved in this case are the determination of the correct classification of the product Micro Manipulator System (MM System) and determination of the Goods and Services Tax applicable thereon. Classification of goods 13.1 The appellant has submitted that the MM System being supplied by it is classifiable under Chapter Heading 9018 of the CTA, 1975 whereas the GAAR has held it classifiable under Chapter Heading 9011 (Tariff Item 9011 80 00) of the CTA, 1975. 13.2 Therefore, it would be useful to refer to the competing Chapter Headings 9011 and 9018 in the CTA, 1975, which are reproduced herein below :- Chapter Heading Description of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rations in certain manufacturing processes; .......... (3) Laboratory measuring microscopes ......... (4) Surgical microscopes for use by surgeons when operating on a very small portion of the body. Their light sources result in independent light paths which provide a three-dimensional image. This heading also covers: (A) Microscopes for photomicrography and microscopes for cinephotomicrography . In addition to the visual observation of the specimen, these also permit the photographic recording of magnified images. They may be composed either of a microscope permanently incorporating a photographic or cinematographic camera (usually specially designed for this purpose), or of a conventional microscope to which a conventional photographic or cinematographic camera can be temporarily fixed by means of a simple attachment. Separately presented photographic or cinematographic cameras for photomicrography or cinephotomicrography are excluded (heading 90.06 or 90.07, respectively) (B) Microscopes for microprojection with compound magnification. These are used for the horizontal or vertical projection of images magnified by a microscope incorporated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or surgical use by reason of their special shape, the ease with which they are dismantled for sterilisation, their better quality manufacture, the nature of the constituent metals or by their get-up (frequently packed in cases or boxes containing a set of instruments for a particular treatment: childbirth, autopsies, gynaecology, eye or ear surgery, veterinary cases for parturition etc.) The instruments and appliances classified here may be equipped with optical devices; they may also make use of electricity, either as motive power or for transmission, or as a preventive, curative or diagnostic agent. This heading also covers instruments and appliances operated by laser or other light or photon beam processes and ultrasonic instruments and appliances. INSTRUMENTS AND APPLIANCES FOR HUMAN MEDICINE AND SURGERY: This group includes: (A) Instruments which may be used under the same names for several purposes(for example): (1) to (17) ...... (B) Special Diagnostic instruments and apparatus: These include: (1) to (6) (C) Opthalmic instruments: These fall into various categories: (1) .......... (2) Diagnostic instruments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he group Instruments and appliances for human medicine and surgery includes Ophthalmic instruments , which falls into various categories, including Diagnostic instruments such as opthalmoscopes; binocular loupes with head bands and binocular type microscopes, consisting of a microscope, an electric lamp with a slit, and a head rest, the whole being mounted on an adjustable support, for the examination of the eyes; tonometers (for testing the intra-ocular tension) eye specula . Similarly, it has been provided that Endoscopes of various types are also included in Chapter Heading 9018, many of which have an operating channel large enough to perform surgery via remote controlled instruments, though endoscopes for non-medical purposes (fibroscopes) are excluded (heading 90.13). Chapter Heading 9018 also includes Lamps which are specially designed for diagnostic, probing, irradiation etc. purposes. 16.1 In the light of the Chapter Heading 9011 and 9018 of the CTA, 1975 and Explanatory Notes thereto, we may now examine the issue of classification of MM System . 16.2 As per the facts narrated by the appellant, the MM System is also known as IVF technology in the medical wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve mentioned facts narrated by the appellant that MM System is a device used in ICSI procedure, IVF procedure or ART. It also appears that MM System consists of above mentioned five main components / elements which include inverted microscope , micro manipulator and micro injector . 17.1 The appellant has submitted copies of letters issued by following organisations / persons wherein functions of ICSI Micro Manipulator System have been narrated (i) Shri Shuichi Iwabuch, Manager, Sales Section-Marketing Department, Microscope solutions Business Unit of Nikon Corporation (ii) Shri RYO Sekiya, Director SSBD of Olympus Medical Systems India Private Limited (iii) Col. Sandeep Karunakaran of INHS Asvini, Mumbai (iv) Dr. Duru Shah, President of Indian Society for Assisted Reproduction (v) Dr. Sheila Balakrishnan, Fertility Centre, SAT Hospital, Govt. Medical College, Thiruvananthapuram. (vi) Department of Obstetrics Gynaecology, Government Medical College, Kottayam. 17.2 It has been observed that the letters of aforesaid organisations / persons only describes the functions of ICSI Micro Manipulator System . 17.3 Similarly, the inclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article; that it shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled. 18.4 We also note that the Hon ble CESTAT vide Order No. A/88111-88116/2018 dated 08.08.2018 / 14.12.2018 has, in the appellant s own case for the same product, though in Customs matter, upheld the classification of the MM System under Chapter Heading 9018 of the CTA, 1975. The appellant has submitted that the said decision of the Hon ble CESTAT has been accepted by the Customs Department (Committee of Commissioner) on 01.03.2019. 18.5 In view thereof, we hold that MM System supplied by the appellant is appropriately classifiable under Chapter Heading 9018 of the CTA, 1975. It is needless to mention here that our view is applicable only where complete MM System is supplied in assembled or disassembled form and not where only microscope is supplied. Rate of Goods and Services Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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