2009 (3) TMI 161

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...., being dealt with by a common order. 2. Heard both sides. 3. The respondents imported medical equipments namely Anesthesia Ventilatory Systems and filed Bills of Entry by claiming the benefit of Notification No. 21/2002-Cus., dated 1-3-2002 as amended vide S. No. 363(A), list 37, item 30 read with Notification No. 6/2006-C.E., dated 1-3-2006, vide Sl. No. 61, which prescribes concessional rate of duty. The department denied the benefit of the said Notification and assessed the goods on merits under Chapter Heading No. 90192090 as Anesthetic apparatus and instruments. On appeal, Commissioner (Appeals) taking into account the technical literature and expert opinion held that the subject goods as ventilator system with in-built anesthesia d....

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....ings of the Commissioner (Appeals) : "4. The aforesaid notification, the benefit of which has been claimed by the appellants, prescribes concessional rate of duty for the goods namely, 'Ventilator used with anaesthesia apparatus,'. Therefore, the short point for determination is whether the subject goods namely, 'Anesthesia Ventilatory system, Anestdiva/5 is 'Ventilatore used with anesthesia apparatus.' The appellants have admitted that the goods function as Ventilator and as an Anesthesia Apparatus. In support of their claim the appellants have submitted the technical literature of the manufacturer viz. Datex Ohmeda, Which reads as follows : 'Anestiva/5 is essentially a ventilator system used for ventilating patients undergoing anesthesi....

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....nesthesia. 6. The leaflets of overseas supplier submitted by the appellant indicates that the impugned goods essentially function as a ventilator system with an additional function of delivering anesthesia. The appellants have also relied upon the User Manual, which would show that the 'The system users a microprocessor-controlled ventilator with internal monitors, electronic PEEP, Volume Mode and optional features". 6.2 The Department wants to consider the ventilator with anesthesia apparatus as a mere anesthesia delivery system. The respondents want to treat the same as ventilator system with in-built anesthesia device. The Notification grants exemption to ventilator used with anesthesia apparatus. The claim of the respondents that the ....