TaxTMI 
TaxTMI 
2022 (11) TMI 871
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....n, is not disputed. 3. Chapter 90 of the Customs Tariff Act, 1975, covers optimal, photographic, cinematographic, measuring, checking, precision, medical or surgical instruments and apparatus, parts and accessories thereof. Tariff item 9018 covers instruments appliances used in medical, surgical, dental or veterinary sciences, including scientigraphic apparatus, other electromedical apparatus and sight testing instruments. Item 9027 covers instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); microtomes. 4. Petitioner imported various quantities of Glucometers and filed Bill of Entry classifying Glucometer under item 9027 in Chapter 90 of the Customs Tariff Act. Cumulative assessable value of the said goods was to the tune of Rs.5,44,42,993/-. Petitioner paid customs duty at NIL rate and paid IGST of Rs.65,33,159/- at the rate of 12%. Post clearance, Dep....
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....line would require that Respondent No.2 had followed the ruling of CESTAT in Bayer (supra) since ratio laid down by CESTAT in Bayer (supra) was binding on the Department. 7. The facts in Bayer (supra) were identical to the case at hand and the short Judgment in Bayer (supra), for ease of reference, is reproduced herein; ". This appeal is directed against the order in appeal passed by Commissioner (Appeals) holding the classification of the impugned imported goods under Customs Tariff Heading 90.18. 2. The facts of the case are that the appellant imported blood Glucose meters having the brand-name Breeze 2 Meter. The imported product consisted of a blood glucose meter and the users guide. The classification of the goods was sought under tariff item number 902780.90 which covers instruments and apparatus for physical or chemical analysis. And exemption from basic customs duty was claimed under notification number 24/05-Cus dated 1.3.2005. The Department did not accept this classification and in adjudication the Assistant Commissioner held the goods to be classifiable under Heading 90.18 which covers instruments and appliances used in medical, surgical, dental or ....
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....er. To substantiate this point, he referred to Sr. No. 65 of notification No. 6/2006 which specifies that Blood Glucose monitoring system (Glucometer) and test strips will be subject to SAD duty of 4%. According to him, this indicates that the glucose monitoring system refers to glucometer only. 3.2. The learned Counsel argued that HSN Explanatory Note to Heading 90.18 state that the goods therein are handled by professionals which is not so in the case of Glucose meters. He also referred to para (o) of the Explanatory Note which state that heading 90.18 does not cover Instruments and Appliances used in laboratories to test blood, tissue fluids, Urine etc. which would generally fall under the heading 90.27. 4. The learned AR appearing on behalf of Revenue reiterated the findings of the Commissioner (Appeals). 5. We have carefully considered the rival contentions of both sides. The competing Headings for classification of the impugned goods are extracted below: 9027 instruments and apparatus for physical or chemical analysis (for example, polarity meters, refractory meters, spectrometers, gas or smoke analysis apparatus); instruments and apparatus....
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....ecific description is to be preferred over a general description, the Heading 90.27 appears more appropriate. 6.1. Further, we may refer to the HSN Explanatory Note to heading 90.18 which states that This heading covers a very wide range of instruments and appliances which, in the vast majority of cases, are used only in professional practice (for example, by doctors, surgeons, dentists,.) either to make a diagnosis, to prevent or treat an illness or to operate etc. Instruments and appliances for anatomical or autoptic work, dissection etc. are also included From the language of this Note it appears that only those instruments fall under heading 90.18 which are used in professional practice in the vast majority of cases. It is obvious that the Glucose meters are not vastly used only in professional practice. Mostly they are used by individuals at home or in the workplace, that is, by common people other than professional practitioners. Further under paragraph (o) of the same Note it is stated This heading does not cover, - instruments and appliances in laboratories to test blood, tissue fluids, uren etc. whether or not such tests serve in diagnosis (generally heading....
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....s classified the Glucometer under 9027, an Appeal to CESTAT against impugned order would be a mere idle formality. 10. Moreover, with this background, Petitioner will also have to make compliance with an onerous precondition of mandatory pre-deposit. When the order is ex facie erroneous and patently in violation of principles of judicial discipline and doctrine of stare decisis, in our view, this is a fit case for us to exercise our jurisdiction under Article 226 of the Constitution of India. Moreover, there are no disputed facts and the only issue to be considered is whether the Glucometer should get classified under item 9018 or item 9027, which has already been considered by CESTAT. Since this is already concluded by CESTAT, on this ground alone, the impugned order requires to be quashed and set aside. Moreover, Respondent No.2, in paragraph No.21 of the impugned order has held as under; "21. Further, I find that as per Serial No.576 of Notification No.50/2017-Customs dated 30.06.2017, the goods the 'Blood Glucose Monitoring System (Glucometer) and test strips' falling in chapter 90 or any other chapter attracts standard rate of BCD @ 5%. The same is reproduced below....