TaxTMI 
TaxTMI 
TaxTMI 
2024 (2) TMI 1642
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....tly importing and continue to import in future the consignments of operation theatre lights from Germany and other countries. The goods are described in invoice as Surgical Operation Theatre Lights with Standard Accessories OR as Operation Theatre Lights. They are classifying the goods under Customs Tariff Heading No 90189099 on the ground that the goods are specialized shadow less lights exclusively designed for use in operation theatres. The applicant has submitted a catalogue of the subject goods which throws light on the special features of the models of these Operation Theatre Lights and these are mainly as follows: The surgeon can set the color temperature according to the tissue structure, the surgical application and individual color sensitivity. This way the surgeon avoids tiredness during work: for instance, dazzling effects can be avoided. On the other hand, it is possible to increase the contrast by using higher color temperatures, which supports the surgeon's power of concentration. The composed light leaves the optical system as white light and is dispersed over the wound field homogeneously. Color shadows in the light beam of the Operation Theatre light ....
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....nce" in the Explanatory Notes but they list out a number of instruments which are actually used in surgery. From the Explanatory Notes, it is clear that the coverage of Heading No 9018 is not confined to specific instruments and appliances but includes many instruments and appliances used in medical and surgical fields. Among the list of items included in this heading are general purpose items like "mirrors and reflectors" for examination of ear, eye, larynx etc., "scissors", face masks, face-piece harness (anaesthetic apparatus). These general purpose instruments are classified under this heading on the basis of their design and their identity as for medical use. The applicant has cited Hon'ble CESTAT Order in the case of COMMISSIONER OF CENTRAL EXCISE, DELHI-II versus COGNATE INDIA 2017 (345) E.L.T. 122 (Tri. - Del.) Medical equipment - Operation Theatre Lights - Classification of - These specialized lamps having shadowless operation, heat defusing capacity and colour correction capabilities especially designed to be used in operation theatres classifiable under subheading 9018.00 of Central Excise Tariff as medical equipment and not under Heading 9405 ibid as sea....
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....rge lamp'. From the above, it is clear that the items examined in these orders were the same items, namely, operation theatre lights with special features to get light without shadow. The Tribunal categorically held that these lights are classifiable under CTH 9018 and the order in respect of Westfort Hospitals was upheld by the Honourable Supreme Court. 4.1 The Joint Commissioner of Customs on behalf of Nhava Sheva-V which is the concerned jurisdictional Customs Commissionerate has responded to the subject application vide a letter dated 29.08.2023 and has submitted that on going through the submission and catalogue of the applicant, it is noticed that the goods are LED light fitted in movable stand and in respect of the nature of the goods, it appears to be classified under 9405, in terms of heading 9405 which covers in particular (i) Lamps and lighting fittings normally used for the illumination of rooms (ii) Lamps for exterior lighting e. g. street lamps, porch lamps (iii) Specialized lamps e. g darkroom lamps, photographic studio lamps, inspection lamps (iv) Lamps and lighting fittings for the vehicles of Chapter 86 for aircraft or....
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....goods in India and has been actively importing Mach LED which is used in Operation Theatre and that it appears to be eligible for filing this application under Section 28H of Customs Act, 1962. Said importer is a reputed distributer of Surgical Instruments. Hence the nature of activity as claimed by Importer in Sr. No. 6 of CAAR-1 appears fair and as per available records no case has been found w.r.t classification of the subject goods (Operation Theatre Light). However, it is worth mentioning that said Commissionerate has not submitted comments on the issue of classification of the subject goods. 5. Further, the applicant rebutting the comments of Nhava Sheva-V, JNCH has submitted that these comments suggesting classification of "Operation Theatre Light System" under CTH 9405 cannot stand any legal scrutiny. It is evident from the catalogue of the product that the impugned goods are not mere LED lamps as claimed by Nhava Sheva-V but are highly specialized high technology products meant exclusively for operation theatres. Colour and temperature of the light can be adjusted to the needs of the surgeon which helps the surgeon to find the optimal position of the OT light to the ....
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....ri Bhupendra Gokani reiterated their earlier written submissions made in the applications to CAAR, Mumbai. They submitted a relevant portion of 'Notice' dated 13.09.2020 issued by Govt. of India, Director General of Health Services (Medical Device Division) and contended that the subject import goods i.e. 'Operation Theatre Light' merit classification under CTH 90189099. In support of their claim the said representatives also reiterated reliance on two case laws viz. CCE Delhi II vs. Cognate India 2017 (345) E.L.T. 122 (Tri .- Del) and Westfort Hi-tech Hospital Ltd. vs. CC, Cochin 2006 (204) E.L.T. 113 (Tri .- Bang.). Nobody appeared from the concerned Jurisdictional Customs Commissionerate i.e. Nhava Sheva-V, JNCH and Air Cargo Complex, Mumbai during the Personal Hearing either online or in person. 7. I have taken into consideration all the materials placed on record in respect of the subject goods including the submissions made by the applicant during the course of personal hearing. I have gone through the response received from the Nhava Sheva-V and the rebuttal to that filed by the applicant. I therefore proceed to decide the present applications reg....
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....) above 90 the surgeon recognizes clearly the tiniest nuances of colour in tissue. The colour rendering index for SC models is Ra = 95. For recognizing the exact colour spectrum of the wound the exact rendition of the red colour range is essential. R9 (red) >= 90 means for the surgeon a visibly better recognition of details. The colour spectrum of the wound is rendered naturally with rich contrast. The OT-light clearly provides welcome relief for your eyes. Illumination in depth: There is possibility to increase the light intensity of the central segment of the OT-light. This enables an optimum illumination of the wound field according to its texture and the shadowing effects. A high and adequate light intensity is very important especially in cases of narrow and deep wound channels. Integrated OT-laser pointer (optional): The built-in laser pointer always indicates the middle of the light field and helps the surgeon to find the optimal position of the OT-light to the wound field. The laser pointer can be activated either at the key pad on the lamp housing or by a left-turn of the ring at the sterilisable handle. After a short time the laser pointer turns off auto....
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....ese are to be used in operation theatres. 7.2 The applicant has relied upon a Notice dated 13.09.2020 issued by Director General of Health Services, Central Drugs Standard Control Organisation (Medical Device Division) wherein 24 categories of medical device for registration purpose is listed out in annexure-II attached therewith and at Sr. No. 9 of this annexure-II 'operation theatre' (OT) is included and further total 27 devices are specified in this category of operation theatre (OT) and at Sr. No. 6 of list of these 27 devices, Surgical Light System: an illuminator device intended for providing optimal light and colour rendering to aid in performing surgery are specified. By virtue of this notice the applicant has argued that Operation Theatre Lights are identified as medical devices by DGHS, CDSCO (Medical Device Division) which are intended for providing optimal light and colour rendering to aid in performing surgery. 7.3 Chapter Note 1(ij) of Chapter 90 mandates that this chapter does not cover Searchlights or spotlights of heading 94.05. From the specifications of the subject goods it is clear that these are not searchlights or spotlight. Further, General Note....
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.... also to treat an illness or to operate. Explanatory Notes to heading 9018 further states that it should also be noted that a number of the instruments used in medicine or surgery (human or veterinary) are, in effect, tools (e.g., hammers, mallets, saws, chisels, gouges, forceps, pliers, spatulae, etc.), or articles of cutlery (scissors, knives, shears, etc.). Such articles are classified in this heading only when they are clearly identifiable as being for medical or surgical use by reason of their special shape, the ease with which they are dismantled for sterilization, their better quality manufacture, the nature of the constituent metals or by their get-up (frequently packed in cases or boxes containing a set of instruments for a particular treatment : childbirth, autopsies, gynaecology, eye or ear surgery, veterinary cases for parturition, etc.). The instruments and appliances classified here may be equipped with optical devices; they may also make use of electricity, either as motive power or for transmission, or as a preventive, curative or diagnostic agent. Explanatory Note (R) explains that group "Instruments and appliances for human medicine or surgery" includes Lamp....
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....wherein para 8 their Lordships observed as under: - 8. The test commonly applied to such cases is: How is the product identified by the class or section of people dealing with or using the product? That is a test which is attracted whenever the statute does not contain any definition .............. It is generally by its functional character that a product is so identified ..... .... When a consumer buys an article, he buys it because it performs a specific function for him. There is a mental association in the mind of the consumer between the article and the need it supplies in his life. It is the functional character of the article which identifies it in his mind. In the case of a glass, mirror, the consumer recalls primarily the reflective function of the article more than anything else. It is a mirror, an article which reflects images. It is referred to as a glass mirror only because the word glass is descriptive of the mirror in that glass has been used as a medium for manufacturing the mirror. The basic or fundamental character of the article lies in its being a mirror." It has been observed by their Lordship in Commissioner of Customs & C. Ex., Amritsar v. D.L. S....
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....efore, the Commissioner (Appeals) has adopted a view without any basis. We should also bear in mind that these lights have specifically been designed for Operation Theatre. In that view of the matter, these lights can be considered as Appliances coming under CSH 9018.19 as Other Electro Medical Apparatus. Therefore, we allow the appeal with consequential relief by setting aside the impugned order in appeal". From these observations of CESTAT Bengaluru it is amply clear that Operation Theatre Lights should not be confined to be considered as mere general purpose light source, conversely, these lights are specifically designed for Operation Theatre. In the case of Commissioner of Central Excise, Delhi-II Versus Cognate India 2017 (345) E.L.T. 122 (Tri .- Del.) Revenue was in appeal against order dated 28-8-2009 of Commissioner (Appeals), Delhi-II. The respondents were engaged in the manufacture of hospital furniture and operation theatre lights and had claimed the classification under Central Excise Tariff Heading 9018.00 as Instruments and Appliances used in medical, surgical, dental or veterinary sciences. The dispute in that appeal was related to correct classification of op....
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.... "Government observes that the department in this second round of revisionary proceedings is mainly contesting that they are filing Writ Petition against GOI Order dated 25.08.2009. This office vide letter F. No. 198/69/2004-RA-Cx dated 22.10.2012 specifically asked department to state the present status of the said Writ Petition. The department vide letter F. No. V(PKS/357) Trb Cell-246/10/AP/M-III dated 11.12.2012 stated the Writ Petition is at 'Pre-admission stage'. As such, the said GOI order dated 25.08.2009 is neither set aside nor stayed by the Hon'ble Bombay High Court. Under such legal scenario the principle of judicial discipline demands that the order of higher authority is to be strictly implemented by the lower Authorities. Hon'ble Supreme Court has held in the case of UOI Vs. Kamalakshi Finance Corporation Ltd. 1991 (55) ELT 433 (SC), that orders of higher appellate authorities should be unreservedly followed by subordinate authorities unless operation of same has been stayed by competent court. Hence, Government finds no infirmity in the impugned Order-in-Appeal and therefore upholds the same." The Hon'ble SC has confirmed the same view alrea....