2013 (3) TMI 609 - AT - Customs

Benefit under Notification 21/2002, dated 1-3-2002 - Mideclaration of goods - held that - Expert of the DGHS did not turn up for cross- examination - Admittedly the department s grievance is that the ld. Commissioner has based his findings on the trade parlance but does not mention how it was found in trade parlance they are understood as cardiac catheters, whereas none of the catalogue, booklets and brouchers defined the catheters as cardiac catheters. Further, the CHA in his statement stated that the word cardiac in the brackets after the description was added on the direction of the Director of the respondent. - Central Venous Catheters (CVCs) have also been certified by various medical professional. CVCs, by definition, are catheters whose tip resides in the central circulation i.e. it is inserted into one of the central veins viz, the superior or inferior vena cava, which two veins return blood into the right atrium and have the largest blood flow of any veins in the body. Central venous catheterization allows measurement of central venous pressure, apart from providing a route for delivery of caustic or critical medications, nutrition and feeding and cardiac pacing. Typically, CVCs are inserted at four main sites (a) Internal Jugular Vein; (b) Subelavian Vein (c) Femoral Vein (d) Brachial vein, all of which provide access to and have nexus with the heart. - entry is inclusive in nature and it covers various types of catheters. - No reason to interfere with the impugned order - Decided against Revenue.

Summary

Issues Involved:
1. Classification of imported catheters.
2. Eligibility for exemption under Notification No. 21/2002.
3. Validity of the DGHS expert opinion.
4. Cross-examination of DGHS experts.
5. Basis of classification and trade parlance.

Detailed Analysis:

1. Classification of Imported Catheters:
The respondents imported Central Venous Catheters (CVC) and claimed exemption under Notification 21/2002. The Department of Revenue Intelligence (DRI) suspected misdeclaration, classifying CVCs as "Cardiac Catheters." The DGHS opined that only one of the five imported items qualified as a cardiac catheter under the notification. The Commissioner of Customs found that the imported catheters, based on their use and insertion points, could be classified as cardiac catheters under CTH 9018 39 20.

2. Eligibility for Exemption under Notification No. 21/2002:
The respondents argued that the catheters were used in cardiac procedures and should thus qualify for the exemption. The Commissioner relied on medical literature and trade parlance, concluding that the catheters met the criteria under the notification, which includes various types of cardiac catheters.

3. Validity of the DGHS Expert Opinion:
The DGHS's letter stated that only the SG Triple Lum Monitoring Catheter qualified for the exemption. However, the Commissioner noted that the DGHS opinion lacked supporting medical or technical literature and did not apply a functionality test. The Commissioner found the DGHS's classification inconsistent with earlier classifications and trade practices.

4. Cross-Examination of DGHS Experts:
The respondents requested cross-examination of the DGHS experts, which was not facilitated. The Commissioner disregarded the DGHS opinion due to the absence of cross-examination, deeming it unreliable without substantiation from medical literature.

5. Basis of Classification and Trade Parlance:
The Commissioner found that the catheters were used in conjunction with the heart, supporting their classification as cardiac catheters. The Commissioner emphasized that the catheters' classification under CTH 9018 39 30 in the manufacturer's country did not bind Indian customs classification. The Commissioner cited the Supreme Court's principle that specific headings should be preferred over general ones, reinforcing the classification under CTH 9018 39 20.

Conclusion:
The Commissioner upheld the respondents' classification of the catheters as cardiac catheters, eligible for exemption under Notification No. 21/2002. The appeal by the Revenue was dismissed, affirming the respondents' eligibility for the concessional rate of customs duty. The judgment emphasized the importance of trade parlance, medical literature, and the specific use of the catheters in determining their classification.