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TMI Blog1995 (2) TMI 194X X X X Extracts X X X X X X X X Extracts X X X X ..... en rejected by the Collector of Customs (Appeals), New Delhi. The Revenue has filed cross objections with regard to the appeal filed by the appellants. As both the appeals emerge from the same bill of entry, they were taken together for hearing and are being disposed of by this common order. 2.The matter was posted for hearing on 30-9-1994. When Shri R. Santhanam, Advocate appeared for the appellants. Shri B.K. Singh, SDR represented the respondent. 3. Shri R. Santhanam, the learned advocate submitted that as the matter related to the classification of the goods imported, the present Bench has jurisdiction to hear the case. In this connection, he relied upon the Supreme Court's decision in the case of Navin Chemicals Mfg. & Trading Co. Ltd. v. C.C., 1993 (68) E.L.T. 3 (SC). The case has a direct and proximate relationship to the rate of customs duty. In this connection, reference was also made to the Tribunal decision in the case of Anil Starch Products Ltd. Ahmedabad v. CCE Ahmedabad 1985 (21) E.L.T. 306 (Tribunal). It was explained that the Bio Health Heater provided warmth to the body, and was correctly classifiable under sub-heading No. 9021.19 as an orthopaedic applianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parts of the body by using the `salt fomentation' theory. It is in the form of a flexible plastic pad. Within the pad there is one round metal disc. There is sodium acetate (food grade), water nontoxic, with bio ceramic stones filled inside the pad, which when activated radiate infra red rays. They come in different shapes, sizes, combinations and colours. When the disc is flexed, crystalisation starts and the pad becomes hot upto 59oC. It is said to provide modern convenient functioning as a hot water bottle, generally used in the households. It is said that cold fomentation could also be enjoyed with the pack. It can be used as such or after keeping the same inside the belt provided for the purpose. They are usable again and again, after recharging in the manner described in the literature on the subject. It has multiple uses as under :- (1)Relief from Muscular pains during/after exercise or other sports activities. (2)Keeps muscles warm after exercise or other sports activities. (3)Relief from back-ache and other body aches. (4)Keeps the bed and body warm when used as a bed heater. (5)Helps in physical therapy. (6)Convenient as a travelling companion. (7) For the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tax, UP - 1981 (8) E.L.T. 325 (SC) in para 5 of the Hon'ble Supreme Court have observed as under : - "5. Having regard to the aforesaid well-settled test the question is whether clinical syringes could be regarded as "glassware" falling within Entry 39 of the First Schedule to the Act? It is true that the dictionary meaning of the expression "glassware" is "articles made of glass" (See " Websters New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers, and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in "glassware" does not ordinarily deal in articles like clinical syringes, thermometers, lactometers, etc. which articles though made of glass, are normally available in medical stores or with the manufacturers thereof like the assessee. It is equally unlikely that consumer would ask for such articles from a glassware shop. In popular sense when one talks of glassware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come up to one's mind. Applying the aforesaid test, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the goods under consideration have medical application. `Medical' is a wide term and covers anything of or having to do with healing or with the science and practice of medicine. Medicine is the science of treating, preventing or curing diseases, study or practice of maintaining and improving health. In the statement of facts the appellants had stated that "the imported goods are clearly in the nature of medical equipment used for medical treatment of patients". While arguing on their stay application the counsel for the appellants had sought alternative classification under sub-heading No. 9018.90. Before us the claim has been made for alternative classification under sub-heading No. 9018.20 or 9018.90. In their written submissions dated 7-10-1994, in paras 8 & 9, the appellants have stated as under :- "8. It is also submitted that the CEGAT in Collector of C. Ex. v. Modern Roofings Ltd., 1990 (45) E.L.T. 174 in para 13.34 has laid down that the functional charac- ter of the articles must be taken into account and should be the proper basis for the purpose of classification of goods in the absence of any statutory definition strictly fitting in for the purpose of cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aded that the difference of opinion between the different Collectors cannot and should not be the basis for the assessee to be either penalised or subject to fine and it is also prayed that the imported goods should be appropriately classified as medical equipments/instruments/apparatus/appliances as they are used for medical treatment only. The appellant draws support for the claim both for classification and for cancellation of penalty, order of confiscation and redemption fine on the following judgments : 1.Bharat Surgical Company Ltd. v. Collector of Customs - 1991 (52) E.L.T. 472 (Tri.) = (1991) 36 E.C.R. 417. 2.Menon Associates v. Collector, 1988 (34) E.L.T. 367. 3.Kothari & Co. v. Collector of Customs, 1989 (40) E.L.T. 155. 4.Gujarat State Export Corporation v. Union of India, 1984 (17) E.L.T. 50. In the case of Bharati Surgical Co. v. Collector of Customs, Madras it was held that refusal to allow on import of identical goods which have been permitted earlier under O.G.L. of the same policy amounts to discrimination. Similarly in the case of Gujarat State Export Corporation v. U.O.I. it has been held that if the customs house is treating the earlier identical imported i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey could be considered as an appliance used in the medical sciences. Although the product has mutiple uses, and some of the uses may not strictly fit in with the concept of medical use, keeping in view the overall effect and the applications for which the goods are likely to be marketed/purchased/used at the stage of our society, it appears to us that they are in the nature of a medical appliance, and are covered by sub-heading No. 9018.90 of the Tariff. How the goods are identified by the consumers as at present is a relevant criterion, as held by the Hon'ble Supreme Court in para 7 of their judgment in the case of CCE v. Fusebase Eltoto Ltd. - 1993 (67) E.L.T. 30 (SC). 11. We are concerned in this case with the goods imported and the question relates to the goods as they are at the time of importation. The construction of the goods imported and the method of activating the substance within and the usage, would show that it is in the nature of a finished article. Taking note of the nature and manner of its application, we consider that it deserves the application of appliance or apparatus. The term `in the Law Lexicon has been defined as under :- "From the meanings given by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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