TaxTMI 
TaxTMI 
2019 (9) TMI 986
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....7 (collectively referred to as the 'Rate Notifications') Q2. If the said product "Dialyzer" falls under Entry No. 255 of Schedule I to the Rate Notifications, whether it would be classified under Chapter 90 (i.e. Tariff item 9018 90 3 1) or Chapter 84 (i.e. Tariff item 8421 29 00). At the outset, we would like to make it clear that the provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to any dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provision under the MGST Act. Further to the earlier, henceforth for the purposes of this Advance Ruling, the expression 'GST Act' would mean CGST Act and MGS T Act. 02. FACTS AND CONTENTION - AS PER THE APPLICANT The submissions, as reproduced verbatim, could be seen thus - Statement of the relevant facts having a bearing on the question raised The relevant facts of the case are as follows: Background of operations: 2.1. Applicant, a Pvt. ltd company incorporated under the provisions of the Companies Act, 1956 holding GST regn no. ('GSTIN') 27AADCN1920C1ZZ with effect from 01.07.2017,....
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.... 6.00% 12.00% 12/2012-CE dt. 17.03.2012 IV Catheter 9018 39 30 9018 39 30 6.00% 12.00% 12/2012-CE dt. 17.03.2012 Needles 9018 32 30 9018 32 30 6.00% 12.00% 12/2012-CE dt. 17.03.2012 Clinical / Adult Diaper 9619 00 40 9619 00 40 6.00% 12.00% 2/2011-CE dt. 01.03.2011 Rubber Stoppers 4016 99 80 4016 99 80 12.50% 18.00% NA Rubber Product-Other 4016 99 90 4016 99 90 12.50% 18.00% NA Statement containing the Applicant's interpretation of classification in respect of the aforementioned products Applicant prefers to present the application before this Hon'ble Authority on the following, among other grounds, each of which is taken in the alternative & without prejudice to the other. 2.10. Applicant's interpretation of law or facts: (i) As mentioned above, current application for advance ruling is being made to determine if the product "Dialyzer" can be classified as 'Disposable sterilized dialyzer or micro barrier of artificial kidney under Entry No. 255 of Schedule I to the Rate Notifications. (ii) Relevant extract of Entry No. 255 of Sch. I to the Rate Notfn. has been reproduced....
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....entific reference articles published in journals. Hemodialysis refers to the dialysis of blood, during which the patient's blood is passed through an artificial kidney or dialyzer (haemodialyzer) containing a membrane (2). The dialyzer, is a semipermeable membrane inside a polypropylene cylinder (3). Dialyzer is used in hemodialysis to filter out wastes and fluid from the bold of patient with kidney failure. Blood flows on one side of the membrane, whilst the other side is bathed by the electrolyte or salt solution (Dialysis fluid) continually produced by a proportionate system (Hemodialysis machine), which also monitors and controls treatment. Molecules small enough to pass through the membrane, such as salts and low molecular protein breakdown products, tend to move in the direction of decreasing concentration. Larger substances, such as proteins and cells having dimensions greater than the pore diameter are retained. Hemodialysis is generally performed three times weekly for patients with irreversible rental or kidney failure, whilst the treatment regimens for acute or reversible rental failure are governed by clinical requirements and may include intermittent or continuous t....
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....G. India - 2000 (116) ELT 6 (SC) = 2000 (1) TMI 194 - SUPREME COURT ii. Fedders Llyod Corporation -2001 (135) ELT 1331 (T) = 2001 (5) TMI 109 - CEGAT, COURT NO. II, NEW DELHI iii. Prag Industries - 1998 (103) ELT 62 (T) = 1998 (6) TMI 159 - CEGAT, NEW DELHI 2.13 Principles of ejusdem generis and/or noistur a sociis: (i) Heading 8421 covers "filtering or purifying machinery and apparatus for liquids" which inter alia include ion exchanger plant or apparatus; household type filters; machinery and apparatus for filtering or purifying beverages, other than water; oil or petrol-filters for internal combustion engines. (ii) Applicants submit that even invoking the principles of ejusdem generis and/or noistur a sociis, the "Dialyzer" cannot be classified under Tariff Item 8421 29 00 as "other filtering or purifying machinery and apparatus", as the same does not have any resemblance to the products covered therein, as blood in human body cannot be compared with any of the liquids meant filtration mentioned under the said Heading, especially in a case where "Dialyzer", by name, is specifically covered under Tariff Item 9018 90 31. (iii) The "Dialyzer" would be ....
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....incipal use with Dialysis Machine, the same would be correctly and principally classifiable under the Heading meant for Dialysis Machine, i.e. Tariff Item 9018 90 31. 2.15. General Rules for Interpretation of tariff (i) The Applicant submits that even invoking General Rules for Interpretation (GIR), the product "Dialyzer" would find appropriate parentage under Heading 9018 and not under Heading 8421, which would get substantiated from the following: (ii) As per Rule I of GIR, firstly, the classification of a product has to be done by invoking the description in the Heading and corresponding Notes to Sections and Chapters, which if invoked, the product "Dialyzer" would be classifiable under Heading 901 8, as Tariff Item 9018 90 31 gives the specific description of the product, i.e. Dialyzer or Artificial kidney and as per Note I(m) to Section XVI, under which Chapters 84 and 85 are covered, articles of Chapter 90 are not covered under the said Section, which means goods covered under Chapter 90 cannot be classified under Chapter 84. (iii) Further, if Rule 3(a) of GIR is invoked, the Heading which provides the more specific description has to be preferred to a Heading pro....
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.... 1996 (87) ELT 321 (SC) = 1996 (10) TMI 74 - SUPREME COURT iv. Krishna Carbon Paper - 1988 (37) ELT 480 (SC) = 1988 (9) TMI 50 - SUPREME COURT 2.17 Heading beneficial to the assessee: (i) Without prejudice to the above submissions, the Applicants submit that if the product in question equally merits classification under two different Headings, the classification one beneficial to the assessee has to be preferred, in support of which we place reliance on the Hon'ble Supreme Court judgment in the case of CCE v/s Minwool Rock Fibres Ltd., reported in 2012 (278) ELT 581 (SC) = 2012 (2) TMI 289 - SUPREME COURT, wherein it has been held as under: Classification of goods - Two competitive headings of Excise/Customs Tariff- Heading beneficial to assessee adopted. [para 13] 2.18 Conclusion: Basis the above submissions, the Applicant is of the view that the product "Dialyzer" merits classification under Tariff item 9018 90 31 and consequently as "Disposable sterilized dialyzer or micro barrier of artificial kidney' under Entry No. 255 of Schedule I to the Rate Notifications. Further to above submissions, we most respectfully pray that: • Allow us....
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....d Ors [2016 (336) ELT 42 (HC-Kol) = 2016 (4) TMI 621 - CALCUTTA HIGH COURT - Enclosed as Exhibit B; and • Additional Commissioner of Customs, Cochin v. Terumo Penpol Ltd [2017 (350) E.L.T. 74 (Ker.)] = 2017 (1) TMI 1466 - KERALA HIGH COURT • Enclosed as Exhibit C - Maintained by Hon'ble Supreme Court in Additional Commissioner v. Terumo Penpol Ltd. [2018 (360) E.L.T. A178 (S.C.)] - Enclosed as Exhibit D. (ii) The above decision of the Kerala High Court in the case of Terumo Penpol Ltd. vs, Additional Commissioner of Customs, Cochin [2017 (350) E.L.T, 74 (Ker.)] = 2017 (1) TMI 1466 - KERALA HIGH COURT, was challenged before the Honorable Supreme Court in Special Leave Petition vide Diary No.2023/2017, and the said petition was dismissed. Whereas the Kolkata High Court judgement in the case of Sanwar Agarwal v. Commissioner of Customs (Port) and Ors [2016 (336) ELT 42 (HC-Kol) = 2016 (4) TMI 621 - CALCUTTA HIGH COURT, is pending before the Division bench of Calcutta High Court. 3.3 In view of this, the decision of Hon'ble Supreme Court has attained finality and is binding on the lower authorities as per Article 141 of the Constitution of India. Since i....
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....equired to display the information essential for proper use on the medical device, its packaging or in the associated documentation, in terms of ISO 15223-1 - "Medical devices - Symbols to be used with medical device labels, labelling and information to he supplied". ISO 15223-1 identifies requirements for symbols used in medical device labelling that convey information on the safe and effective use of medical devices. It also lists symbols that satisfy the requirements of this part of ISO 15223. This part of ISO 15223 is applicable to symbols used in a broad spectrum of medical devices, which are marketed globally and therefore need to meet different regulatory requirements. We have enclosed the same herewith as Exhibit E. (vi) The symbol required to be displayed on single use or disposable medical devices is given in Point 5.4.2 of Table I - Symbols to convey information essential for proper use. This symbol indicates a medical device that is intended for one use, or for use on a single patient during a single procedure. Further, sterilized medical devices are also required to display a certain symbol given in Point 5.2.4 of Table I, which indicates that the medical device has....
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....r. Should you require any further information or clarification, we will be glad to provide the same. 03. CONTENTION - AS PER THE CONCERNED OFFICER The jurisdictional office has not made any submissions. 04. HEARING The case was taken up for Preliminary hearing on dt. 03.05.2019 with respect to admission or rejection of present application when Sh. Nitin Vijaivergia and She Shivraj Mhaske, Advocates appeared and made oral submissions requesting for admission of their application. Jurisdictional Officer was not present. The application was admitted and final hearing was held on 02.08.2019, Sh. Shivraj Mhaske, Advocates and Sh. Vipin Bang, Advocate appeared and made oral and written submissions. Jurisdictional Officer was not present. 05. OBSERVATIONS We have gone through the facts of the case, documents on record and submissions made by both, the applicant as well as the jurisdictional office. The subject matter concerns classification of the product, namely "Dialyzer" manufactured by the applicant. They have queried as to whether it would be classified under Chapter 90 (i.e. Tariff item 9018 90 31) or Chapter 84 (i.e. Tariff item 8421 29 00). The applicant....
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....ne, instrument or apparatus, or with number or machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind. The Applicant has drawn our attention to the fact that the ambiguity in the classification of the product has arisen because of the Board's Circular No.19/2013 dated 09/05/2013 wherein it has been clarified that "Disposable Sterilized Dialyzer and Micro barrier for filtering blood" are correctly classifiable under 84212900. It was also informed that the JNCH Customs has not accepted an order-in-original of the Commissioner classifying the product in Heading 9018 and appealed against it in the CESTAT on the ground that though the Kerala High Court in the case of Terumo Penpol Ltd. vs. Additional Commissioner of Customs, Cochin [2017 (350) E.L.T. 74 (Ker.)] = 2017 (1) TMI 1466 - KERALA HIGH COURT upheld the classification of the product in the heading 9018 and the Supreme Court dismissed the department's appeal against it, it was dismissed in limine and hence cannot be considered as having attained finality. We have....