2017 (9) TMI 904 - AT - Customs

Absolute confiscation - Import of prohibited item - used dialysis machine - case of appellant is that the goods should be allowed to be redeemed for use with redemption fine and penalty - Held that - the equipment is the life saving equipment. It would be advisable and proper to obtain expert opinion instead of presuming or inferring the scope of the equipment. As such, we find that based on the above admitted facts, it is necessary to take an expert opinion before contesting scope of prohibition and also possibility of redeeming such goods for home consumption. The practice followed in respect of other consignments of similar goods is also to be examined - the original assessing authority directed to obtain an expert opinion and to examine such opinion along with the claim of the appellant regarding permission granted to similarly placed imports for clearance of identical goods by Chennai Customs on fine and penalty - appeal allowed by way of remand.

Summary

Issues:
Import of used dialysis machine under prohibited category, expert opinion requirement, redemption fine and penalty imposition, examination of similar clearances for other importers.

Analysis:
The appeal challenged the order of confiscation of an imported dialysis machine valued at ?19.07 lakhs due to it being prohibited for import under Schedule VI and Hazardous and other Wastes Rules. The appellant, a charitable trust, argued that the machine was not waste, had a residual life, and was imported for actual use. They highlighted the absence of a notification designating the machine as Critical Care Medical Equipment. The authorities had allowed similar imports with redemption fine and penalty previously but changed course in this case, leading to absolute confiscation. The appellant emphasized the nature of the item and their charitable status for leniency.

The opposing argument contended that the imported machine fell under the prohibited category of used Critical Care Medical Equipment for reuse. The absence of an import license and the equipment's potential life-saving nature were key points. The Ministry of Environment's definition of Critical Care Medical Equipment and the prohibition on importing such equipment for reuse were highlighted. The appellant's reliance on past clearances was challenged, emphasizing the necessity to examine each case individually.

The Tribunal noted the lack of expert opinion in determining the machine's classification as life-saving equipment. It stressed the importance of obtaining expert advice rather than presumptions. The Tribunal set aside the impugned order, directing the original authority to seek expert opinion and review the appellant's claim in light of past clearances by Chennai Customs. The need for re-adjudication before clearance was emphasized, with a timeline of one month provided for the process. The appellant was granted an opportunity to present their case before a fresh decision was made.

In conclusion, the appeal was allowed by remand for further expert evaluation and examination of past clearances, ensuring a fair assessment of the import's nature and permissibility.