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TMI Blog2009 (7) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... ved in both the appeals is eligibility to exemption of medical equipment described as "Ventilator used with Anaesthesia Apparatus" imported under cover of 5 Bills of Entry during the year 2006-2007 by Wipro, they are taken up together. Appeal No. C/8/2008 (Wipro GE Medical Systems) 2. Wipro imported goods described as "Anaesthesia Ventilator System" (Aestiva/5 under the cover of Bills of Entry No. 254719 and 273775 dated 22-9-2006 and 18-10-2006 respectively). They imported same equipment of model S/5 Aespire under the cover of Bill of Entry S. No. 365826 dated 14-2-2007. The consignments cleared under Bills of Entry No. 254719 and 273775 dated 22-9-2006 and 18-10-2006 respectively were allowed exemption in terms of Notification No. 21/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olation of principles of natural justice. The same deserved to be vacated. The appellants relied on several case laws in support of this prayer. 3. In CC, Mumbai v. Toyo Engineering India Ltd. reported in 2006 (201) E.L.T. 513 (Supreme Court), the Apex Court had held that the Department could not travel beyond the show cause notice and rely on grounds which did not find mention in the show cause notice. The impugned order was not sustainable also since, in respect of import of an identical equipment, vide Order-in-Appeal No. 92/2007, dated 26-7-2007, the same authority had vacated the order of the original authority denying the benefits extended under Notification No. 21/2002-Cus., dated 1-3-2002 and No. 6/2006-C.E., dated 1-3-2006. Such c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esia Apparatus". The main machine was Anaesthesia Apparatus and the ventilator entitled to exemption should be used with such apparatus. He held that to be eligible for the benefit, the equipment should be basically a ventilator capable of being used with Anaesthesia Apparatus or actually used with it. This meant that the benefit could not be extended to Anaesthesia Apparatus used with ventilator function or to a composite machine having pre-dominant function as Anaesthesia delivery, incorporating ventilator feature. The expert opinion produced by the Department had supported such a view. 7. We find that the technical literature of the manufacturer viz Datex Ohmeda on the product reads as follows : "Aestiva/5 essentially a ventilator syst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent through the ventilator for inducing and maintaining anesthesia, consists of oxygen and Nitrous oxide or air combined with volatile anesthetic agent concentration. The user selects the proportions of these gases based on the requirement of the patient. The ventilator system consists of pressure reducing valves, calibrated flow meters and calibrated vaporizers for mixing of the anesthetic gas that will be delivered to the patient through ventilator. The ventilator is equipped with the patient breathing system consists of the bellows assemble, circle module, re-breathing bag and the breathing circuit. This patient breathing system contains the anesthetic gas mixture to be delivered to the patient." 8. The impugned equipment has composite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of the Department that the ventilator is merely an additional feature. Therefore, we agree with the submissions of the ld. Advocate for the respondents that the impugned goods can be considered as ventilator used with anesthesia apparatus and eligible for the exemption claimed." 9. In the circumstances, we find that the impugned order is not to be sustainable in law and accordingly, we vacate the same and allow the appeal filed by Wipro. Appeal No. 629/2007 10. This appeal is filed by the Revenue canvassing denial of the benefit of notifications to similar goods as impugned in the above appeal filed of the importer and seeks to vacate the Order-in-Appeal No. 92/2007 dated 26-7-2007. As we have held that the impugned goods "Ventilator u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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