TaxTMI 
TaxTMI 
TaxTMI 
2004 (2) TMI 562
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....ubsequently, a show cause notice dated 23-9-99 was issued alleging that the imported consignments were raw-materials/components required for the manufacture of ELISA KITS which were liable to duty at 25% and that by misdeclaring the goods which were liable to duty as exempt goods, they had evaded customs duty. The notice, therefore, proposed recovery of the duty evaded under proviso to Section 28(1) of the Customs Act, demand of interest under Section 28AB of the Customs Act, confiscation of the imported goods under Section 111(m) of the Customs Act and imposition of penalty under Section 112/114A. In the adjudication proceedings the charges were upheld by the Commissioner of Customs and Central Excise Hyderabad under his order-in-original ....
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.... goods under import as ELISA kits was incorrect and inappropriate. The supplier did not do so in his documents. Hence the impugned goods were truly not entitled to full exemption under the relevant notifications already referred to above as and when they were imported." 3. The contention of the appellant all through is that what they had undertaken was bulk imports of ELISA kits. These bulk kits were thereafter re-packed into 48 test kits for sale to Path Labs for use in pregnancy tests. During the hearing of the case learned Counsel for the appellants took us through the invoice and other import documents and emphasized that what was ordered and supplied were certain number of test kits and not any ingredients or raw material for the....
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....eads; (ix) Deactivated enzyme labelled human anti HIV reagent." In view of the above, the question for determination is whether the imported consignments were these ingredients/raw materials or whether they were test kits. Sample purchase order dated 20-12-1995 states as under :- "[We are pleased to accept your above cited quotation to the extent shown below. The Terms & Conditions mentioned overleaf from part of the contract. Please supply the following : Sl. No. Description of the Material ACC Unit Quantity Rate USD Unit Value USD 1. hCG PREGNANCY ENZYME IMMUNOASSAY AIRFREIGHT & HANDLING CHARGES TOTAL C&F HYDERABAD BY AIR USD AS PER 12500 TESTS 0.19 TEST 2375.00 212.00 _....
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....s exworks Zurich to Hyderabad Airport. Insurance coverages for the shipment is the full responsibility of the buyer. Keep Cool Between +2ºC and +8ºC USD 424.00 Thank you for your order Total : C&F USD 5,174.00 ZURCHER KANTONAL BANK, 0126 ZUMIKON, SWITZERLAND : ACC NO. 1310 00002.143 Morewell Diagnostics GmbH Correspondence: Morewell Diagnostics GmbH Poatiwoh 8126 Zumikon, Switzerland Administration : Morewell Diagnostics GmbH ............................... 8132 Engg./Zurich, Switzerland Tel : (+41-1) 986 2626 Fax : (+41-1) 986 2630 Invoice SOLD TO : Dr. Reddy's Laboratories Ltd. Diagnostics Division 6-3-927/D Somallguda Raj Bhavan Road Hyderabad, India DATE :     17 Dec. 1996 Y....
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....e accordingly packed. The buyer in turn was to repack the bulk packs into more convenient packs of 48 tests for supply to Path Labs. It is also clear that the test kits in question do not come as a single test kit for performing one individual test. It comes as combination of microwell plates of 48 tests, and before carrying out a test, the test laboratory separates out one plate and serves the required quantity of reagent into the plate and carries out the test. This is the commercial practice. The notification when it used the words 'test kit' it should be taken to mean test kit as understood and transacted in trade and commerce and not as individual test kits, so packed by the manufacturer, as held by the Commissioner. If the vialing of ....