TMI Blog2001 (6) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Sunil Nanda of M/s. Poonam Cargo Services and M/s. Aerobridge Cargo Services (P) Limited were searched. Incriminating documents were recovered from some premises. However, nothing was recovered from the residential premises of Mrs. Renu Bajaj. The detained goods were seized. 3. Shri Rajeev Malik the G. card holder of M/s. Poonam Cargo Services in his statement stated that before getting 'G' authority, Bills of Entry of M/s. Medisphere and M/s. Medisource were signed by Shri Sunil Nanda of M/s. Poonam Cargo Services; that after getting 'G' authority, he started signing Bill of Entry for those two companies; that M/s. Medisphere was mentioning description of IV. cannula as venflon and neoflon along with its article no. ; that he used to prepare the Bill of Entry on the basis of invoices submitted by M/s. Medisphere; that after discussing tariff heading and notification applicable with Shri Rajan Bajaj, Director of M/s. Medisphere and M/s. Medisource the Bill of Entry was prepared and signed by the CHA; that M/s. Medisphere had been importing the same cannula i.e. intravenous which is not a cannula for a specific use; that he noticed in an invoice received from M/s. Medisphere in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. Poonam Cargo Services in his statement stated that Shri Rajeev Malik one of the Directors of M/s. Aerobridge Cargo Services (P) Limited was working as Manager in his company and having "G" authority; that M/s. Aerobridge Cargo Services (P) Limited, was booking the clients for clearance of import cargo on behalf of his company; that he was looking after import of M/s. Medisphere and M/s. Medisource till 1997; that during that period M/s. Medisphere was importing IV cannulas of neoflon, venflon, vasculon and vetaflon brands of different gauges and had classified the same under Chapter Heading 90.18 and paid customs duty at the applicable rate as per direction of Shri Rajan Bajaj; that M/s. Medisphere and M/s. Medisource were importing 3-way connector also; that he could not differentiate between 3-way stopcock and 3-way connector; that after 1997 the work of M/s. Medisphere and M/s. Medisource was being handled by his employee Shri Rajeev Malik. 5. Ranjit Singh of M/s. Anil Traders who was purchasing IV cannulas of neoflon and venflon brands from M/s. Medisphere in his statement stated that those cannulas were IV cannulas for general peripheral use in transfusion and could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Entry under which the customs duty was paid, description was given as "IV cannula"; that however in the Bills of Entry the description is shown as "cannula for aorta, vena cavae and similar veins and blood vessels"; that while going through the customs tariff, she came across an entry under which exemption was available to (a) cannula for aorta, vena cavae (b) similar veins and blood vessels and (c) intra corporal spaces; that she discussed the matter with medical experts and their customs lawyers to find out whether they could get exemption on IV cannula imported by them; that after those verbal discussions, they realised that IV cannula imported by them should be eligible for exemption under law and as such they filed those Bills of Entry describing the goods as above; that after discussion with their medical experts and lawyers, she came to know that IV cannula was covered by "similar veins and blood vessels"; that she spoke to their supplier for giving this description on invoice; that the supplier informed that their supplier gave that description on the invoices only after discussion with the manufacturer; that they paid customs duty only to maintain the supply of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early indicated 3 value at which the goods will be available if purchased in excess of quantity mentioned in the agreement dated 6-10-1997. 15. Regarding 3-way stopcock, they submitted that it was not disputed in the SCN that 3-connector, 3-way stopcocks imported by them were used as 3-way connectors. They contested that the Department's allegation that since this item performed additional function, therefore this was not covered by Notification No. 23/98-Cus., was incorrect. 16. The Commissioner after considering the reply to the SCN, submissions, etc., held that the appellants were not entitled to the benefit of Notification No. 23/98. He also held that the goods were under invoiced, confiscated the goods and imposed the penalties in addition to demanding duty. 17. Shri V. Lakshmikumaran with Shri M.P. Devnath, ld. Advocates appeared for the appellants whereas Shri Prabhat Kumar, ld. SDR represented the respondent Commissioner. 18. The first question that arises for consideration is whether cannulas imported by the appellants were eligible for the benefit of Notification No. 23/98. 19. The contention of the Revenue was that the appellants had been importing this product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal has only considered a scalp vein set which has a shorter, narrower tubing to which a metal needle (cannula) finely coated with Teflon is attached. At this point of attachment, it has 'butterfly' plastic strip. Therefore, it is distinct from a 'drip' infusion set which has a longer, thicker tubing; a larger needle with no coating; an air-trap-cum-drip speed monitoring bulb." 21. Ld. Counsels submitted that the product imported by the appellants described differently at different times is covered for exemption under Notification No. 23/98. As against this contention, the Revenue's contention was that this decision of the Tribunal was on Notification No. 55/95-Cus. and not on Notification No. 23/98-Cus. It was also submitted by the Revenue that in that case there was a favourable decision of DGHS wherein it was opined that the product was eligible for the benefit of Notification No. 55/95-Cus. whereas ld. DR submitted that in the instant case the DGHS has clearly opined that the product does not qualify for exemption under Notification No. 23/98 as it is not covered by Sl. No. 34 List No. 22. Ld. DR submitted that there is a catena of judgments in which this Tribunal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perts given by the assessee is supported by technical literature. In the case of Inter Medico Exempt (P) Limited, this Tribunal accepted the certificate issued by DGHS. However, in the instant case, we find that DGHS has been furnishing different opinions at different times and hence the case is distinguishable. We note that in the instant case the DGHS has been changing its opinion from time to time. Earlier in 1986 3-way stopcock was opined to be covered as a life saving equipment whereas in the opinion given in 1998 it is not covered. Thus, we note that in the circumstances of the present case and the facts on records as also the fact that the officer who had signed the DGHS opinion was not the officer who had formulated the expert opinion and who refused the answer the question in cross-examination, and also coupled with the fact that others were not presented for cross-examination as also the fact that in the case of CCE v. M/s. Saberwal Surgical (P) Limited [2000 (117) E.L.T. 400 (Tri.)], the position was more or less similar. We hold that in the circumstances of the present case, DGHS opinion can be rejected. The facts are different and hence the opinion given by the DGHS ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-way stopcock or 3-way connector. The main contention of the Revenue was that this product does not only act as connector but acts as a regulator also. The Counsels submitted that there is decision of this Tribunal in the case of Sanghi Synthetics (P) Limited in which it was held that the benefit of exemption under notification available even though machine is capable of multiple functions. They, therefore submitted that the query made and the point raised by the Revenue is fully met by this decision of this Tribunal even though 3-way stopcock or 3-way connector perform additional function. They also submitted that Sl. No. 5 (iii) of List No. 2 to Notification No. 23/98 reads "High pressure stopcock and connector for pressure regarding". They submitted that the item imported by them fully answers to the description of the goods against Sl. No. 5 (iii). It was, therefore submitted by them that both cannulas and 3-way stopcock/connector are fully covered under Notification No. 23/98. They further submitted that according to the advice given by DGHS in 1986, 3-way stopcocks were life saving equipment. 28. On careful consideration of the submissions and discussions, we note that 3-w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising the demand. In the circumstances the demand of differential duty is not sustainable. The same is, therefore, set aside. 32. Since we have held that the benefit of Notification No. 23/98-Cus. was admissible to the appellants and since we have held that there is no case for demanding differential duty, therefore the question of imposition of penalties did not arise. In the circumstances, the penalty imposed on the appellants is set aside. 33. Shri L. P. Asthana, the ld. Counsel appearing for Shri Sunil Nanda of M/s. Poonam Cargo Services and Shri Rajeev Malik submitted that there is hardly any role attributed to these appellants as they had acted strictly under the law in terms of the description given in the invoices. He, submits that no case has been made out for imposition of penalty. He, therefore, prays that penalties may be set aside. The ld. DR reiterates the findings of the adjudicating authority. 34. We have heard the rival submissions. Since we have already held that Notification No. 23/98 was available to the importers. We do not see any reason for imposition of penalty. Therefore the order imposing penalty on the aforesaid appellants is set aside. 35. The 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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