TaxTMI 
TaxTMI 
2009 (1) TMI 630
X X X X Extracts X X X X
X X X X Extracts X X X X
....rocuring atraumatic needles from local manufacturers for the manufacture of atraumatic needles with sutures. They were also importing polypropylene, poly glycolic acid and nylon type of sutures in thread form and surgical needles and have declared these imported goods as (1) Polyglycolic Acid Sutures, (2) Atraumatic needles, (3) Surgical Sutures and suture, (4) Synthetic monofilament, (5) Suture Material, classifying them under Chapter Sub-heading Nos. 9018.39, 90189099, 90185090, 90189029 and 30061010 respectively. The appellants availed the benefit of exemption of Customs duty in terms of Notification No. 17/2001-Cus., dated 1-3-2001 (Sl. No. 351B, List 30, Sl. No. 5) and subsequently under concessional rate of Customs duty (5% Adv.) under Notification No. 21/2002-Cus., dated 1-3-2002 (Sl. No. 367B, List 38, Sl. No. 5) as part of ophthalmic equipment, in respect of the imports of the goods cited above. They have been availing full exemption of CVD on the impugned goods in terms of Central Excise Notification No. 6/2002-C.E., dated 1-3-2002 (Sl. No. 268 B) and earlier corresponding Central Excise Notification as part of ophthalmic equipment. 4. The officers of Customs (Pre....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... sutures and needles imported during the period from July, 2001 to September, 2005 under Bills of Entry as shown in the enclosed annexure to the Show Cause Notice under Section 111(o) of the Customs Act, 1962. However I give them an option to redeem the said goods on payment of Redemption Fine of Rs. 2,50,00,000/- (Rupees two crore fifty lakhs only) under Section 125 of the Customs Act, 1962; (d) I appropriate the amount of Rs. 10,91,075/- paid under protest under TR 6 challan dated 13-12-2005 against the duty demanded at (d) above and the protest vacated; (e) I demand appropriate interest on the duty demanded above under Section 28AB of the Customs Act, 1962; (f) I impose a penalty of Rs. 15,00,000/- (Rupees fifteen lakhs only) on M/s. SIPL, Bangalore under Section 112(a) of the Customs Act, 1962; (g) I also impose penalty of Rs. 5,00,000/- (Rupees five lakhs only) on Shri. L.G. Chandrashekhar, Managing Director of M/s SIPL, Bangalore under Section 112(a) of the Customs Act, 1962. Order-in-Original No. 26/2007-Commr. - M/s. MCo Hospital Aids Pvt. Ltd. ORDER (a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1)(b) of Customs Act, 1962. I also appropriate the amount of Rs. 3,00,000/- already paid under protest vide TR 6 challan dated 21-2-2006 towards the differential duty and the protest vacated. III. I confiscate the goods valued at Rs. 2,07,81,440/- imported under the subject Bills of Entry between the periods from October, 2001 to May, 2006 under the provisions of Section 111(o) of the Customs Act, 1962. However, I give them an option to redeem the same on payment of redemption fine of Rs. 60,00,000/- (Rupees Sixty Lakhs only) under Section 125 of the Customs Act, 1962. IIIA. I demand appropriate interest on the duty payable with reference to (3) above on the impugned goods under Section 28AB of Customs Act, 1962. IV. I impose a penalty of Rs. 5,00,000/ (Rupees Five Lakhs Only) on M/s. Futura Surgicare Private Limited, Bangalore under Section 112(a) of Customs Act, 1962. V. I also impose a Penalty of Rs. 3,00,000/- (Rupees Three Lakhs only) on Shri. A. D. Setty, Executive Chairman, M/s. Futura Surgicare Private Limited, Bangalore under Sec. 112(a) of Customs Act, 1962. All the appellants are....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the Hon'ble Supreme Court in the case of Northern Plastics Ltd. v. CCE & CE - 1998 (101) E.L.T. 549 (S.C.) = 1998 (27) RLT 556 wherein while filing the bill of entry, the appellant had clearly indicated that they are importing sutures. It is his submission that by claiming a wrong benefit, it can never be considered as mis-declaration. He would also submit that the assessment as done by the assessing officer while clearing bills of entries is not challenged by the revenue, in view of this, there cannot be any demand. He would rely upon the decision of this Tribunal in the case of Madhus Garage Equipment v. CC - 2006 (198) E.L.T. 388 (Tri.-Bang.) and Wipro Ltd. v. CC - 2005 (189) E.L.T. 289 (Tri.-Bang.). He would submit that the benefit of exemption Notification can be claimed by the appellant at any time, which is a settled law by the Hon'ble Supreme Court in the case of Share Medicals Care v. UOI - 2007 (209) E.L.T. 321 (S.C.). 6. The learned Chartered Accountant Shri S. Ramasubramanian appearing on behalf of the appellants in Appeal Nos. C/258 & 259/2008, submits that he adopts the arguments advanced by Shri M. S. Srinivasan on the merits and limitation. He would furt....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n of the order of the assessment passed under Section 47 is a different issue and Show Cause Notice under Section 28 can be issued for mis-statement and suppression. It is her submission that the Supreme Court in the case of Jain Shudh Vanaspati Ltd. v. UOI - 1996 (86) E.L.T. 460 (S.C.) has clearly held that Show Cause Notice under Section 28 can be issued without revising the order of clearance under Section 130. She also submits that the Tribunal in the case of Rajasthan Petro Synthetic Ltd. v. CC, New Delhi - 2001 (130) E.L.T. 595 (Tri.-Del.) has held that review and re-opening of the finalized assessment will not come in way, if there is a deliberate fraud committed by the assessee and provisions of Section 28 can be invoked. It is her submission that in these cases the appellants were very well aware that they were not importing ophthalmic equipment as per List No. 38, hence, there was a deliberate fraud committed by the appellants on the revenue. 8. In rejoinder, the learned Chartered Accountant Shri Ramasubramanian, would submit that the declarations made in bill of entry is sutures claiming the benefit of particular Sl. No. and they had never mentioned that goods ar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w : Ophthalmic equipment, namely : - (1) to (4)......... (5) Microsurgical needles, cannulas, blades, trephine blades, membrane peelers, diathermy probes, vitreous cutters, atraumatic needles and sutures, intraocular scissors and forceps. (6) to (47)..... The claim of the appellant that they are covered under the Sl. No. 5 of the List No. 38 of the Notification No. 21/2002 was considered by the lower authorities and the said bills of entry were accordingly assessed and goods were cleared. We find that the benefit of List No. 38 is basically for ophthalmic equipment. We also find that SI. No. 5 in List No. 38 has got items which are not at all connected to any of the ophthalmic equipment. We may say so, because the entries at SI. No. 5 as reproduced above contain Microsurgical needles, cannulas, blades, trephine blades, membrane peelers, diathermy probes, vitreous cutters, atraumatic needles and sutures, intraocular scissors and forceps cannot be considered as 'ophthalmic equipment', as these items are required at the time of surgery and/or post-surgery. The appellants in these cases have submitted that assuming that they are not covered under List 38, under Sl. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....egorically stated that they cut the sutures to a size, crimp needles on them and repack them in the smaller size after putting them to sterilization process. In our considered view, not extending the benefit to the sutures which are imported in reel form would be incorrect as the Tribunal in the case of CC, Chennai v. South India Surgical Company Ltd. - 2007 (210) E.L.T. 553 (Tri.-Chennai) was seized of an identical situation of import of plastic tubings of medical grade in running length, the Tribunal held as under : 3. After considering the submissions, we do not find any reason to interfere in the decision of the lower appellate authority. It appears from the relevant invoice and Bill of Entry that PVC tubings of various diameters were imported on spools, in the lengths of 34.560 m, 18.000 m and 4.800 m. As rightly observed by the lower appellate authority, these items could not be imported in standard sizes as the tube length required for medical equipment depended on numerous factors. Hence the ordinary practice is to import such tubings of medical grade in running lengths so that the requisite shorter lengths could be cut out and used as accessory to medical equipment....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ociety rather than a primary society'. (emphasis supplied) 15. From the above decisions, it is clear that even if an applicant does not claim benefit under a particular notification at the initial stage, he is not debarred, prohibited or estopped from claiming such benefit at a later stage. The law as settled by the Supreme Court would squarely apply in this case, as we find from the records that all the appellants have led evidence before the Adjudicating Authority in form of certificates from various medical authorities, that the sutures manufactured by the appellants are suitable for cardio-vascular surgery. In view of this, we hold that the appellants are eligible for the benefit of Notification No. 17/01-Cus., No. 21/2002-Cus. Notification No. 6/2002-C.E. in respect of the goods which are imported by them. 10.5 The next issue which is to be required to be considered by us is whether there is mis-declaration, as alleged by the revenue. We find from the records before us that the appellants have declared the said goods as atraumatic needles and sutures claiming benefit of List No. 37 or 38, as the case may be, under the relevant Notifications. It was a claim w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Colour Films (Unexposed) Positive. The size of the goods was also mentioned in the Bill of Entry. There was no dispute in respect of correct valuation of the goods or any other particular except its description as Cinematographic Colour Films. Since the proceedings were initiated for the purpose of confiscation the burden was on the Department to show that the goods imported were not Colour Films but were Photographic Colour Films only. We have already referred to the scheme and the relevant heading and sub-headings of Chapter 37 of the Customs Tariff for the year 1988-89 and observed that there was no separate heading or sub-headings in respect of Cinematographic Colour Films (unexposed) or Cinematographic Film (unexposed). Whether the film was Photographic film (unexposed) or Cinematographic Film (Unexposed), it was included under the Heading 37.02. Whether with sprocket holes or without sprocket holes they were all described as Photographic Film in Rolls and there was no separate heading or sub-heading in respect of Cinematographic Films having sprocket holes and of width not exceeding 105 mm. Therefore, the scheme of chapter 37 did not disclose that only those Photographic Film....
X X X X Extracts X X X X
X X X X Extracts X X X X
....0 mtrs. Total sq. m. 1250 x 1140 x 59 = 84075." 19. The appellant had not described the rolls as jumbo rolls but had given the length and width of each roll. The word "jumbo" is only indicative of size of the goods and the appellant having specifically stated the size of each roll it was not necessary, as there was no such requirement of law, for him to have described the goods which were in the form of rolls as Jumbo rolls. It was also not necessary for him to describe them as the 'jumbo colour film' as there was no separate heading or sub-heading for jumbo colour film in Chapter 37. Merely because the appellant claimed that it was entitled to exemptions in respect of customs duty under exemption Notification No. 52/86 as amended by 157/88 and because there was a separate exemption notification in respect of colour jumbo films, it cannot be said that the declaration made in the Bill of Entry did not correspond with "any other particular" of the imported goods. Whether the appellant was entitled to the benefit of exemption under the said notification or not was a matter of belief of the appellant and not a matter of any other particular with respect to the goods. It is a....