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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 ..... ms (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 appliance. The goods under consideration could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heory. 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 adventurous, can be taken along when going on Campin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les of Chapter 90 which cover among others medical or surgical instruments and apparatus are excluded from the Chapter 39. In the case of Indo-International Industries v. Commissioner of Sales 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. 90.21" It is seen from the description under Heading 90.21 that the goods in question does not fit in with the description therein. The Orthopaedics is the Branch of Surgery that deals with the deformities and diseases of bones and joints. Orthopaedic is of or having to do with orthopaedics. The goods in question are not in the nature of orthopaedic appliances as mentioned in the Heading 90.21. 10. Now coming to the Heading No. 90.18 which includes, among others, medical instruments and appliances, it is seen 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 cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age 41 of the appeal papers in Appeal No. 602/94-B2. Even subsequent to the import of the impugned goods, the appellant has been allowed clearance by the Bombay Customs of the same goods under heading 9018 as may be seen from the Bill of Entry dated 30th March 1994 enclosed as Annexure 9 at page 42 of the Customs Appeal No. 602/94-B2. It is, therefore, submitted that while the Bombay Customs have accepted the assessee s classification as medical equipments, the Delhi customs have rejected the same and therefore, it is pleaded 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appliances, used in dental sciences : 9018.41 Dental drill engines whether or not combined on a single base with other dental equipment 40% .. 90.18 9018.49 Other 40% .. 90.18 9018.50 - Other ophthalmic instruments and appliances 40% .. 90.18 -9018.90 Other instruments and appliances 40% .. 90.18 It is seen that sub-heading 9018.20 covers Ultra-violet or infra-red ray apparatus in the nature of Electrodiagnostic apparatus (includig apparatus for functional exploratory examinations or for checking physiological parameters). Sub-heading 9018.90 is a residuary entry under Heading No. 90.18, which covers instruments and appliances used in medical Sciences. From the description it appears that while the goods under consideration are not in the nature of ultra-violet or infra-red ray apparatus, they 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 applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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