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TMI Blog2002 (3) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... , Assemblies including Metal/Plastic Fabricators, Moulder Parts, Heat Sinks, Bussbars, Card racks, other Hardware. (iv) Electro Mechanical Parts such as relays including solid state relays, reed relays, switches, solenoids, diaphragm components, microphones, stepper Motor, Micrometer Instruments Fan etc. 2.1 The learned Advocate mentioned that since they were to manufacture/assemble the said components of Artificial Lung Ventilators and to export them, they had applied to the Licensing Authority for issuance of Advance Licence giving details of all the components for the manufacture/assembly of Artificial Lung Ventilators; that the Advance Licence was given to them on 5-12-2000 which covered all the components; that the requisite DEEC passbook was issued wherein the name of the supporting manufacture as M/s. Toshniwal Product India Ltd. was also mentioned; that the first consignment of five machines had been cleared under Bill of Entry dated 27-12-2000 and after assembly of the machine, the Artificial Lung Ventilators had already been exported in terms of DEEC Scheme in January, 2001; that at the time of present import of 15 machines, the Department entertained the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... integrated anesthesia unit; that all the components are resolved to make it a fully functional machine. In support of his submissions, the learned Advocate detailed the process of manufacture as under : 3.4 The main control panel, which is supplied as a component, is taken out and the back portion is removed by removing the screws at the back; the gas analyzer pipe is installed on the block of the main control panel; the indicator fuse is installed on the main block of the unscrewed plate to ensure free flow of oxygen; the plate is fixed to the back portion; then the second PC Plate and third PC Plate are removed and are checked and verified with the help of multimeter the continuity of various circuits for the required voltage, all these three PC Plates are replaced back in the main control panel; these PC Plates are indicated as LD Front 4 , LP Messwert II and CTD ; that minimum of 19 screws are removed in order to access the back up battery section and battery pack is checked for the required voltage and any carbon deposition on the cathode and anode terminals are removed; that finally the back panel is adjusted to the main control unit and after the assembly the unit appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Artificial Lung Ventilators with integrated Anesthesia Unit and that both the exports items and inputs were covered by the licence; that DGFT, therefore amended the Advance Licence and clarified that the description of the export product may be indicated as Artificial Lung Ventilators with Integrated Anesthesia Unit Type Julian; that with this Amendment the export items and inputs would get covered by the SION at Sl. No. B-62 and the clearance of goods may be allowed. He, therefore, submitted that the goods are fully covered by the DEEC Scheme and were entitled for the benefit of exemption Notification No. 51/2000-Cus. He also argued that it is a settled law that any clarification issued by the DGFT in respect of the interpretation of the Policy is final and binding on the Customs Authorities. Reliance was placed on the decision in M.J. Exports Ltd. v. CEGAT, 1992 (60) E.L.T. 161 (S.C.), wherein it was held that CCIE s opinion on the Import and Export Control Order is final and binding. Similar views were held in the case of Casio India Co. Ltd. v. Commissioner of Customs, Mumbai - 2000 (121) E.L.T. 379 (T), Cine Land v. CC, Chennai - 1999 (114) E.L.T. 653 (T), Raja Imports an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y were not offered for cross examination though a specific request was made by them. 5. In respect of five units imported and cleared earlier, the learned Advocate mentioned that no demand can be raised at this stage for the reasons that the evidence which is relied on in this case cannot be automatically be considered as applicable to those imports; that reliance on the same evidence would entirely be in the nature of presumption and conjecture which is impermissible in law, that assessments in that matter were finalized and a demand at this stage would be improper under Section 28(1) of the Customs Act without first having set aside the finalized assessment. He relied upon the decision in the case of CCE v. Flock (India) P. Ltd. - 2000 (120) E.L.T. 285 (S.C.). Finally he submitted that no penalty is imposable under Section 112 of the Customs Act since no act or omission of the importer has rendered the goods liable to confiscation as the goods imported are squarely as per the description in the subject Advance Licence; that the goods in question have been accurately described in the Bill of Entry and other documents; that no penalty under Section 114A of the Customs Act is impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Verma had admitted the colour photocopy of a Drager Anesthesia Work Station, given by him to the Department, was specially made at the request of the Appellant- Company for the purpose of showing to the Department and there was no original; that Dr. Ullal had not physically verified the requirement of raw materials, components parts, etc. and neither he had visited the factory nor seen any design or drawings before the issue of the Chartered Engineer s Certificate; that Shri K.V. Ramesh, Area Manager of M/s. Usha Drager Ltd. had opined that what had been imported was a completely assembled machine; that Shri B.S. Kotian, Commercial Manager of M/s. Toshniwal Instrument (India) Ltd. had deposed in his statement dated 21-5-2001 that they did not have the technical knowledge for the consignment and they had merely provided space and labour and the goods were packed in the same packing in which these were imported; the learned DR also pointed out that as per the catalogue of the Julian Machine, Breathing System could be stripped in seconds; that Breathing System is also easily attachable and detachable and does not need any special efforts, time technique or expertise to attach or detac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e machine or these are only components to be assembled by the Appellants into a complete machine before being exported. The Revenue has claimed that no assembly is required as complete machinery has been imported and some parts had been kept separately for safety and ease in transportation and that these parts are just to be fitted in their places. The Appellants on the other hand has given the process of assembly undertaken by them which includes installation of indicator fuse on the main block, checking of various P.C. Plates with the help of multimeter, checking of battery pack, assembly and checking of flow sensor over the patient breathing system, assembly of the Patient Breathing System on the removable panel, fixation of vapourization Module and assembly of Table and Drawer Assembly to the main Control Unit and connection of various tubings. We are of the view that the issue involved is a factual one which can be verified by physical examination by the Adjudicating Authority as to whether the process undertaken by the Appellants amounts to assembly of a complete machine. In our view, it also requires to be examined as to whether the product after the process undertaken by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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