TaxTMI 
TaxTMI 
2021 (9) TMI 1289
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.... in the medical world and in common / trade parlance, it is also called "Micro manipulator'; that globally micro-manipulator falls under HSN 9018 but in India there is confusion as to whether it falls under HSN 9018 or 9011; that they are of the view that the product in question should be classified under Chapter Heading 9018 and not under Chapter Heading 9011. The appellant has submitted that a micromanipulator is a device which is used to physically interact with a sample under a microscope, where a level of precision of movement is necessary which cannot be achieved by the unaided human hand and may typically consist of an input joystick (a mechanism for reducing the range of movement) and an output section with the means of holding a micro-tool to hold, inject, cut or otherwise manipulate the object as required; that mechanism for reducing the movement usually requires the movement to be free of backlash which is achieved by the use of kinematic constraints to allow each part of the mechanism to move only in one or more chosen degrees of freedom, which achieves a high precision and repeatability of movement, usually at the expense of some absolute accuracy. 3. The appellant ha....
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.... the CGST Act, 2017. Applicability of the rate of GST on the said product would be 28% (14% SGST + 14% CGST) upto 14.11.2017 and 18% GST (9% SGST + 9% CGST) with effect from 15.11.2017." 7. Aggrieved by the aforesaid Advance Ruling, the appellant has filed the present appeal. 8.1 The appellant has submitted that it is a trader of 'MM System', wherein goods are imported and supplied to various customers in India. It has further been submitted that the import consignments of the appellant were subject to classification dispute by the Customs Authorities for which the appellant contested the matter up to Customs, Excise and Service Tax Appellate Tribunal (CESTAT). Meanwhile, the appellant filed aforesaid application for Advance Ruling on 04.07.2018 to avoid confusion under Goods and Services Tax Law. 8.2 The appellant has submitted that the Hon'ble CESTAT, vide Order Number A/88111-88116/2018 dated 17.12.2018, has upheld the classification of impugned goods under Tariff Item 9018 90 99. It has also been informed that the said Order of the Hon'ble CESTAT has been accepted by the Commissioner of Customs (Import), Air Cargo Complex, Sahar, as communicated vide letter F.No. S/3-Gen100/....
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....nd the inverted Microscope are individual components of the 'MM System' and are both meant to contribute to the principal function of the Micromanipulation System, which is to carry out the IVF by ICSI procedure; that it does not matter whether the same are separate or joined in any manner. The appellant has submitted that the crux is that the inverted microscope which is equipped along with micromanipulator contributes to the main function of IVF by way of magnification of the objects for the ICSI procedure, which is carried out by the Micromanipulator and thus the microscope merely magnifies the objects so as to carry out the main procedure in a proper manner. Thus, even by application of Section Note 4 to Section XVI, the impugned goods merit classification under Chapter Heading 9018 and not under Chapter Heading 9011. 8.7 The appellant has submitted that it laid emphasis on the content of the product literature made available to the GAAR for classification of the 'MM System'. The appellant relied upon the judgement of the Hon'ble High Court of Bombay in the case of M/s. Kulkarni Black and Decker Ltd. Vs. Union of India [1992 (57) ELT 401 (BOM)] in support of the contention tha....
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....re, it would be useful to refer to the competing Chapter Headings 9011 and 9018 in the CTA, 1975, which are reproduced herein below :- Chapter Heading Description of goods Unit (1) (2) (3) 9011 Compound optical microscopes, including those for photomicrography, cinephotomicrography or microprojection 9018 Instruments and appliances used in medical, surgical, dental or veterinary sciences, including scientigraphic apparatus, other electromedical apparatus and sight-testing instruments 14.1 The relevant portion of Explanatory Notes of HSN for Tariff Heading 9011 are reproduced below - "Whereas magnifiers of heading 90.13 have only a single stage of magnification of relatively low power, the compound optical microscope of this heading has a second stage of magnification for the observation of an already magnified image of the object. A compound optical microscope normally comprises: (I) An optical system consisting essentially of an objective designed to produce a magnified image of the object, and an eyepiece which further magnifies the observed image. The optical system usually also incorporates provision for illuminating the object from below ....
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....scopes enabling rapid change of focus, and are used in education, scientific and medical demonstration rooms, technical laboratories etc." ......... This heading also excludes : (a) ........ (b) Ophthalmic binocular-type microscope (heading 90.18) (c) to (e) ...... 14.2 Thus, it is seen that Chapter Heading 9011 covers 'compound optical microscope' as used by amateurs, teachers etc. and those for industrial use or for research laboratories, whether or not they are presented with their optical elements (objectives, eyepieces, mirrors etc.). This Chapter Heading also include 'Surgical microscopes' for use by surgeons when operating on a very small portion of the body, in which their light sources result in independent light paths which provide a three-dimensional image. It has specifically been mentioned that this Chapter Heading excludes 'Ophthalmic binocular- type microscope (heading 90.18). 15.1 The relevant portion of Explanatory Notes of HSN for Tariff Heading 9018 are reproduced below - "This heading covers a very wide range of instruments and appliances which in the vast majority of cases are used only in professional practice (e.g. by doctors, surgeons, dentists....
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....th a slit, and a head rest, the whole being mounted on an adjustable support, for the examination of the eyes; tonometers (for testing the intra-ocular tension) eye specula. (3) ......... This heading also covers electrically heated compresses for the eyes, and electromagnets designed for removing metallic particles from the eyes. (D) to (N) ......... (O) Endoscopes:gastroscopes, thoracocopes, peritoneoscopes, bronchoscopic telescopes, cystoscopes, urethoscopes, resectoscopes, cardioscopes, colonoscopes, nephroscopes, laryngoscopes,etc. Many of these have an operating channel large enough to perform surgery via remote controlled instruments. However, endoscopes for non-medical purposes (fibroscopes) are excluded (heading 90.13). (P) Apparatus incorporating an automatic data processing machine and designed solely for calculating the dose and distribution of therapeutic radiation. (Q) ...... (R) Lamps which are specially designed for diagnostic, probing, irradiation etc. purposes. Torches, such as those in the shape of a pen are excluded (heading 85.13) as are other lamps which are not clearly identifiable as being for medical or surgical use (heading 94.05). ...... ....
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....ved by the unaided human hand and may typically consist of an input joystick (a mechanism for reducing the range of movement) and an output section with the means of holding a micro-tool to hold, inject, cut or otherwise manipulate the object as required; that mechanism for reducing the movement usually requires the movement to be free of backlash which is achieved by the use of kinematic constraints to allow each part of the mechanism to move only in one or more chosen degrees of freedom, which achieves a high precision and repeatability of movement, usually at the expense of some absolute accuracy. The appellant has submitted that 'MM System' is used to perform ICSI procedure to overcome human infertility problems which is an IVF procedure and a type of ART; that ART procedures involve surgically removing eggs from a woman's ovaries, combining them with sperm in the laboratory, and returning them to the woman's body or donating them to another woman. 16.3 The appellant has listed the 5 basic elements required by an IVF lab to correctly perform ICSI technique as under: (a) Laminar flow cabinet: It has to contain a hot surface and an environment with 5% of CO2. (b) Inverted mi....
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....titutes does not mention anything about 'MM System'. 18.1 The appellant has submitted a write-up on ICSI Procedure, wherein under the heading 'laboratory equipment', it has been mentioned that there are some requirements that an IVF lab need to correctly perform ICSI technique; that there are basically 5 main elements: laminar flow cabinet, inverted microscope, micromanipulators, microinjectors and anti-vibration table. As per the submissions of the appellant, 'MM System' has been designed to carry out a specific function of 'IVF' with the help of various equipment like microscope, micromanipulator, micropipette and micro injector wherein microscope is a tool and multiple micromanipulators are devices. It has also been submitted that the microscope, that too 'inverted microscope' is just one of the components of the apparatus as the entire process has to be done on minute particles, however, the microscope is used merely as a visual aid and does not interfere with the main procedure, which is ICSI. 18.2 Thus, as submitted by the appellant, 'MM System' being supplied by it comprises of various components, one of which is microscope. Further, such 'MM System' is being used only by ....