TaxTMI 
TaxTMI 
2023 (9) TMI 197
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....them under Customs Tariff Heading No.90229090 and claimed benefit of concessional rate of Basic Customs Duty at 5% vide sl.No.357B (2) of the Customs Notification No.21/2002 dated 01.03.2022, Nil rate of CVD vide Sl.No.59 (ii) of Central Excise Notification No.6/2006-CE, and full exemption from SAD at Sl.No.72 of Customs Notification No.20/2006 dt. 01.03.2006 as amended. Thus the effective rate of duty as claimed by the importer (appellant) works out to be 5% (BCD) + 3% Customs Cess+ 0% CVD + 0% C.E. Cess + % SAD. The importer cleared the goods on payment of duty as self assessed above. Subsequently, it was noticed by the department that the goods being X-ray plates are actually classifiable under CTH 37011010 and are not accessories to Digitizer as claimed by the importer. It thus appeared that the goods are liable to be classified under CTH 37011010 applicable would be @ 10+10+3+3+4%. The misclassification and availment of concessional rate of duty vide various notifications claimed by the importer resulted in short payment of duty. Show cause notices / memos were issued to the appellant proposing to re-determine the classification and to demand differential duty along with inter....
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.... Preferential (1) (2) (3) (4) (5) 9022 Apparatus based on the use of X-rays of alpha, beta or gamma radiations, whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus, X-ray tubes and other X-ray generators, high tension generators, control panels and desks, screens, examination or treatment tables, chairs and the like - Apparatus based on the use of X-rays of alpha, beta or gamma radiations, whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus 9022 12 00 -- Computed tomography apparatus u 7.5% - 9022 13 00 -- Other, for dental uses u 7.5% - 9022 14 -- Other, for medical, surgical or veterinary uses: u 7.5% - 9022 14 10 ---X-ray generators and apparatus (non-portable) u 7.5% - 9022 14 20 ---Portable X-ray machine u 7.5% &n....
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....ernment, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods of the description specified in column (3) of the Table below or column (3) of the said Table read with the relevant List appended hereto, as the case may be, and falling within the Chapter, heading or sub-heading of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as are specified in the corresponding entry in column (2) of the said Table, when imported into India,- (a) from so much of the duty of customs leviable thereon under the said First Schedule as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table; (b) from so much of the additional duty leviable thereon under sub-section (1) of section 3 of the said Customs Tariff Act, as is in excess of the rate specified in the corresponding entry in column (5) of the said Table, subject to any of the conditions, specified in the Annexure to this notification, the condition No. of which is mentioned in the corresponding entry in column (6) of the said Table: TABLE S.No. Chapter or Heading No. or sub-heading No. Description of goods S....
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....or indirectly by the action of light or other form of radiation on its photosensitive surfaces. In fact, X-ray sheet is developed on the plate / film itself which is not the case of imported goods. In the present case, no images are formed on the goods as in the case of photographic plate. The plates on its exposure to X-ray, the molecules of phosphor get excited and remain active for about 24 hours. This is processed in the ADC Solo Digitizer as an X-Ray image. The plates can be reused multiple times and thus different from an ordinary X-ray plate. The authorities below have failed to note that no visible images are made on the imported goods. The imported goods are capable of repeated use whereas the usual X-ray plate when exposed once, cannot be used repeatedly. 6. Ld. Counsel submitted that in the appellant's own case when the Digitalized X-Ray Equipment (ADC) was imported, the department sought to classify it under CTH 9022. The present dispute is with regard to the imaging plates and accessories which are used in the ADC for display of the X-Ray taken. This issue of classification of imaging plates and cassettes have already been decided by the Tribunal in the case of Jind....
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....d to be under CTH 3701 having been set aside by the Hon'ble Supreme Court, the classification of the goods as under 9022 and also that these are accessories to Solo Digitizer stands settled. There was an observation made by Commissioner (Appeals) that the appellant did not produce the brochure/literature of the imported goods. The Appellant has filed miscellaneous applications in all the appeals to accept and consider the catalogue of impugned goods. This catalogue of the goods was relied by the learned counsel for appellant to put forth the argument that the imported goods are not ordinary X-Ray plate to be classified under 3701. Ld. Counsel prayed that the appeal may be allowed. 9. Ld. A.R Sri R. Rajaraman appeared for the Department and supported the findings in the impugned orders. The description of the goods described in OIO No.322/2011 dated 01.07.2011 at para 9 reads as under : "The CR MD cassette is a user friendly and durable CR cassette containing a photostimulable phosphor imaging plate and featuring a memory chip for storing the data entered at the ID terminal. The exposure equipment and routines do not have to be modified when switching from conventional t....
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....late these goods fall under 3701 cannot be accepted as these plates can be used for capture of images many times unlike an X-ray plate. 13. The very same issue as to the classification of Imaging Plates and Cassettes came up for consideration before the Tribunal in the case of Jindal Photo Ltd. (supra). The Tribunal in the said case held that the goods are classifiable under CTH 90189090 and are eligible for the benefit of Notification No.21/2002-Cus. The importer therein had adopted the classification under 90189099 and not under 90229090. Relevant para of the Tribunal order reads as under : "6. We have carefully considered the submissions and perused the records. The only dispute in this case is classification and benefit of the Notification with regard to the following 3 items : (i) Dry pix 7000, (ii) FCR Capsula, and (iii) I.P. Cassette & Imaging Plate. The appellants claimed the classification of Dry Pix 7000, FCR Capsula and IP Cassette & Imaging Plate under CTH 90189099. The Lower Adjudicating Authority classified Image Plates, IP Cassettes and Capsula under CTH 90229090 and classified Drypix under CTH 84433990 and denied the b....
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....02 would be available even if the goods fall under CTH 370110, as the Sl.No.357B of the notification covers all goods falling under Chapter 90 or any other chapter. The relevant part of the order reads as under : "4.1 ...... The benefit of exemption under Notification No. 21/2002-Cus, dated 1-3-2002 would still be available as serial No. 357B covers accessories of goods required for medical, surgical, dental or veterinary use, falling under Chapter 90 or any other chapter. An accessory by its very nature is something which aids or improves the efficiency of the main machinery. A photographic plates or film cannot be said to be a part of a camera or an X-ray machine. A camera or an X-ray machine is complete even without a film. Therefore, a film or an imaging plate would come under the category of accessories to a machine. Since the coverage under 357B includes all products falling under Chapter 90 or any other chapter, goods falling under CTH 3701 would also be eligible for the benefit of concessional rate of 5% ad valorem under the aforesaid notification. Thus, IP and IP cassette, which is only a protective cover for the imaging plates would be eligible for the exemption.....
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....assettes are eligible to benefit of Notification NO.21/2002- Cus. dated 1.3.2002 under Sr.No.357B(ii). Accordingly, appeal is allowed." 16. Further, in the case of Bill of Entry dt. 16.8.2011 (Appeal No.C/42105/2014) the appellant had imported the very same goods adopting the classification under CTH 9022. The original authority vide OIO dt. 23.09.2011 held that the imported items CRMD4.OT cassettes which contain photostimulable phosphor imaging plates being used for Computed Radiography (CR) systems though rightly classifiable under CTH 90229090 are not accessories and hence not eligible for the benefit of notification. On appeal, the Commissioner (Appeals) vide order impugned herein upheld the classification, but however held that the goods are consumables and therefore not eligible for the benefit of notification. 17. From the above it can be seen that in the case of Fujifilms Pvt. Ltd. the classification of the goods has been settled to be under 90229090. So also, the department in the OIO dt. 23.09.2011 has held the goods to be classifiable under 90229090 against which no appeal has been filed by the department. We therefore hold that the classification adopted by the ap....