TaxTMI 
TaxTMI 
2023 (3) TMI 593
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....ant for the last several years. The product is used for the chemical analysis of blood including gases in a short span of time for better patient management and treatment. The Appellant -importer classified the I Stat Blood Gas Analyser under heading 90279090 and claimed the benefit of notification No.24/2005- Customs (Sl. No. 35 of the notification) for the cartridges, as an accessory of the blood gas analyser under heading 90279090 and also claimed benefit of notification No. 25/2005 -Customs (Serial No. 32 of the notification). 3. The contention of the Revenue is that the goods are correctly classifiable under heading 9018 (sub-heading 90181990) and the benefit of notification No. 24/2005-Customs and No.25/2005-Cus is not available to the product under the classification as suggested by Revenue. Revenue issued show cause notice alleging as follows: - " The cartridge under import is used in 'I Stat Blood Gas Analyser', a portable clinical analyser, used at the bedside of a patient. The analyser is a point of care instrument for use by the Physicians, intensivists, anaesthetists and surgeons or doctors at the patient's bedside. It has no provision to do more than single t....
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....ical procedure or after a trauma. A few drops of blood are placed on the cartridge, which is an accessory of the analyser, and the doctor would be in a position to read the blood gas levels, sugar levels, electrolytes and other parameters of the patient on the analyser screen. 10.2 One of the most important document relied in favour of argument is the Explanatory Notes to chapter 9018. It was argued before the lower authority, both, while submitting reply to the show cause notice and during the course of personal hearing, that explanatory note to heading 90 18 pointedly says that instruments apparatus used in laboratories to test blood, tissue fluids, urine, etc. whether or not such tests serve in diagnosis are excluded from the purview of heading 90 18 and are classifiable generally under 90 27. After the schedule of customs tariff is aligned with HSN, it is incumbent on the part of the assessing officers to abide by what has been stated in the explanatory notes, in case a doubt arises as to the scope of an entry. There is a catena of judgements on the issue. The appellant pleads that in view of the explanatory note to heading 9018, diagnostic equipment and instruments are exclud....
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....he decision equally and aptly applies to Accessories of I Stat Blood Analyser, as the Analyser was more specifically fitting the description of Chapter 9027 90. 10.8 The lower authority also contends and takes shelter on the fact that on an earlier occasion, way back in 2011, we had argued for the analyser to be classified under Chapter 9018 and had received a favourable order and today we are arguing against our earlier premise. 10.9 There were some inherent capabilities which were specifically added to the analyser making it more useful in terms of testing for many more parameters, making it a whole some analyser. Furthermore, an argument taken 10 years ago, without the benefit of judgements from Higher Authorities like in the case of the Bayer Pharmaceutical Vs. CC, Mumbai, which clarified once and for all the exact classification of an analyser. 10.10 We would also like to state that even though we had received a favourable order earlier, the lower authority has to use his discretion judiciously and in a reasonable manner based on the facts presented before him, and not on the biased opinion that since the same appellant is presenting a differing view point, it should be sum....
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....to be established before the authority imposes a penalty. The appellant pleads that the case law relied upon is irrelevant. The second case he relied upon is Indian AL Company Ltd. Vs. Municipal Corporation [1991 (55) ELT 454], wherein the court have held that in case of exemption or concessions, interpretation of statute should be in such a way that non-observance of even a procedural condition not be condoned, if likely to facilitate commission of fraud and introduce administrative inconvenience. This ruling also lacks relevance in imposition of penalty under Section 114 A in the present case. 10.15 The appellant relies on the decision of the Tribunal in the case of Teracom Pvt. Ltd. Vs. CCE, Goa - [ 2018 (363) ELT 1013], wherein the Tribunal held that in the absence of any mis-declaration of description of imported goods, merely claiming exemption, under a particular notification, which is based on interpretation, does not amount to mis-declaration, penalty not imposable. This decision was cited before the lower authority. 10.16 The Tribunal in the case of CCE & ST, Hyderabad Vs. Sandor Medicaids [2019 (367) ELT 486] held that once the appellant has declared what is being impo....
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....n people and not by professionals or laboratories in general. Ld. Departmental Representative also relied on the order of the Commissioner (Appeals) in order-in-appeal no.19/2018 dated 12.04.2018 in the appellant's own case related to the similar dispute. 12. Having considered the rival contentions, we find that it is not disputed that the I Stat System is prima facie an instrument/apparatus for physical or chemical ananlysis of various parameters of the blood by chemical analysis , electrolysis, etc. The instrument is capable of being used along with the cartridge either at patient's bedside or in the laboratory, etc. We further find that Explanatory Note (o) to CTH 9018, specifically mentions that the heading does not cover - instruments and appliances used in laboratory to test blood tissue, fluids, urine, etc. - whether or not such tests serve in diagnosis (generally Heading 90.27). Blood and other analysers are mainly used in laboratories etc, only for the reasons that the same is portable and can be used at patient's bedside or is being mostly used at bedside or in an ICU, will not change the classification from 9027 to 9018. 13. We further find that the court below has bee....