TaxTMI 
TaxTMI 
2018 (8) TMI 908
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....ed concessional rate of duty as per Sl. No.363 (A), List 37 of Notification No.21/2002-Cus. dated 1.3.2002 and Item No.3 under Central Excise Notification No.6/2006 dated 1.3.2006. The department had denied the concessional rate of duty and assessments were made accordingly. The Commissioner (A) vide Order-in-Appeal No.20/2009 dated 20.2.2009 has rejected their appeal on the grounds that the said exemption under Notifications are available only to ventilators used with anesthesia operators whereas the impugned goods are Anesthesia Delivery System. Hence, this appeal. 2. The learned counsel for the appellants submitted that according to the functions and features described in the operation manuals, it is nothing but an anesthesia ventilator....
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....lhi. The learned Commissioner (A) has completely ignored that technical opinion which cannot be brushed aside unless displaced by an equally competent expert opinion as held in the following cases: * Bharat Textiles Processings vs. CC, Tuticorin: 2004 (171) ELT 86 (T) * Wipro GE Medical Systems Ltd. vs. CC: 2006 (206) ELT 400 (T) * Intercontinental (India) Ltd. vs. UOI: 2003 (154) ELT 37 (Guj.) 2.2 The learned counsel has also submitted that the issue is no longer res integra since the issue has been decided by the Tribunal in the following cases: * CC (I & G), New Delhi vs. Datex Ohmeda (India) Ltd.: 2009 (241) ELT 359 (Tri.-Del.) * Datex Ohmeda (India) Ltd. vs. CC, Bangalore: 2010 (252) ELT 289 (Tri.-Bang.) * Wipro GE Medical....
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.... have held that "Truly speaking liberal and strict construction of an exemption provision are to be invoked at different stages of interpreting it. When the question is whether a subject falls in the Notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject, but once ambiguity or doubt about applicability is lifted and the subject falls in the Notification, then full play should be given to it and it calls for a wider and liber construction". The Apex Court has also made similar observations in the case of CCE vs. Parle Exports (P) Ltd.: (1989) 1 SCC 345. As the learned counsel submitted that as the question of ambiguity was not raised in the earlier proceedings, which w....
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....ailable literature, manuals, etc., on record, it appears that the impugned equipment is composite equipment. Whereas the department sees the equipment to be an anesthesia machine having an accessory in the form of ventilator, the appellants have presented the same as a ventilator used with anesthesia machine. On perusal of the brochure for AestivaTM /5 Compact mentions that bags or vent switch turns mechanical ventilator on or off without additional controls. 5.2 On perusal of the brochure for S/5 Avance Carestation, ventilation part is the facility to expand the clinical capabilities of the Avance to help, to meet the needs of the patients. Thus, the literature available appears to show that the impugned equipment is basically an anesthes....
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.... also argued that technological progress and development cannot be overlooked and the new products/innovations are type of components to supersede earlier products. However, we find that the judgment of the Hon'ble Supreme Court in the case of Lekhraj Jessumal & Sons cited supra, is in the context of import policy and tariff schedules and not in respect of the applicability of any exemption Notification. 5.5 We find that the case of Dilip Kumar Company & Others cited supra by the learned AR is on the issue of applicability of exemption Notification. We find that the Hon'ble Supreme Court has categorically stated that in case of ambiguity alone the benefit of interpretation should go to the Revenue. The learned counsel for the appellants ha....
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....ts that the impugned goods can be considered as ventilator used with anesthesia apparatus and eligible for the exemption claimed. 5.6 The learned DR has not brought anything on record to indicate that the said order of the Tribunal has been appealed against or otherwise. Therefore, we find that the Tribunal's order has attained finality and as there is no apparent ambiguity in the Notification, the question of applying ratio of the case of Dilip Kumar Company & Others cited supra does not arise. It is not the case of the Department that the impugned goods are ventilators used with anesthesia systems. The case is also not that exemption in terms of the Notification is available only to ventilators. The impugned goods are ventilators which a....