1984 (8) TMI 317

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....ower Supply (c) 10 pcs. of stand and fitting (d) 10 pcs. of connecting cables (e) One pc. of Flexible Bronchoscope. Items (a) to (d) constituted 10 sets of Fiber light Operating Microscopes claimed by the Importers to be Endoscopic Equipment for the purpose of clearing the same as 'Life Saving Equipment' figuring at S. No. 34 of list 2 of Appendix 10(42) (OGL) of the Import Policy AM-1982. The last item mentioned at (e) above was found undeclared. From the catalogue as well as special enquiries, it was revealed that operating Microscopes with fibre light attachments cannot be included in the category of Endoscopes. On 28-1-1983, i.e., after one and a half years, the Appellants came up with a plea that 10 microscopes were meant for supplies to Government institutions, viz., one set for Lady Harding Medical College and Hospital, New Delhi, one set for Assam Medical College & Hospital, Dibrugarh and eight sets for Director of Medical Education, Hyderabad. Copies of the Proforma Invoices duly endorsed for exemption from duty by the Office of the Director General of Health Services in terms of Notification No. 17-Cus., dated 25th January, 1979, were submitted and a claim was....

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....ipment of all types (Gystoscope, Laproscope, etc.)". The Suppliers' catalogue itself is titled "Endoscopes, and Accessories" and microscope 2051, which has been imported, is described in this catalogue, which makes it obvious that it falls under category of 'endoscope'. (iii) In their letter dated 5-10-1983 to the Under Secretary, the Appellants had submitted a certificate dated 3-9-1983 from Dr. K. Madan, of Dr. Ram Manohar Lohia Hospital, that the goods come under category of endoscope of the non-invasive type. (iv) A write-up was also submitted to the effect that an endoscope is an instrument for viewing the cavities of internal organs, and the vision could be directly through proximal end or on a screen through the various media at the distal end. Endoscopes are of two kinds - (a) invasive and (b) non-invasive. The former are those inserted into the body like bronchoscopes. The latter are not inserted but are used for examining the organs by looking from the proximal end to see the area visualized at the distal end. This category has under its purview inter alia the operating microscope. (v) The Collector should have appreciated that the Appellants had taken up the mat....

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.... of duty. The Duty Exemption Certificates were produced at a subsequent stage. The goods are covered by Sl. No. 42 of Appendix 10 and permissible for import under OGL. So they are not liable to confiscation under Section lll(d) and (m). As regards the bronchoscope, it was not declared in the Bill of Entry as the Appellants were not aware that it was included in the consignment and it is worth knowing that the consignment comprised only on package and the Appellants were fully aware that it would be opened and examined before clearance by the Customs Authorities. So, it is not reasonable that they would have deliberately attempted import of the bronchoscope without payment of duty, if leviable. The Appellants are, therefore, not liable to penalty under Section 112. For these reasons it is requested that the order be set aside, the fine in lieu of confiscation be remitted in full and the goods allowed to be released, that the penalty of Rs. 20,000/- be ordered to be refunded, that the value of the bronchoscope be re-assessed and that 9 operation microscopes be released free of duty in terms of Notification No. 17/79. 4. On 30-6-1984, learned Counsel sought to file certain ....

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....amining the interior of a hollow 'viscus' and a 'viscus' is any large interior organ in any of the four great body cavities, especially those in the abdomen. Encyclopaedia Britannica also describes Endoscopy as medical examination of the interior of the body usually through a natural body opening by the insertion of a lighted optical shaft or open tube. Instruments used are esophagoscopies, bronchoscope, thoroscope, etc., and no instrument in the nature of a fibreoptic microscope. Since it is not an endoscope, the microscope is not covered by OGL and the criterial for import cannot be satisfied after import by producing exemption certificates. If the proforma invoice dated Mareh 81 was genuine, it could be a case for renewal. As regards the bronchoscope, the c.i.f. value had been ascertained and the Bill of Entry for a subsequent import was not relevant. The penalty was also justified as there was no evidence to justify bonafide import. 7. In reply, Shri Beri claimed that either list 2 Sl. No. 34 or Sl. No. 41 would entitle the goods to the OGL. Even if they are not so covered. Item 5 of Appendix 10 covered them as DGHS had certified them. 8. The first question to b....