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TMI Blog2013 (9) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... laration made would make the goods liable to confiscation – considering the nature of the equipment to be one used in medical care and also the nature of misdeclaration involved and the letter issued by a public authority like the Chief Medical Officer DGHS redemption fine was reduced – Decided partly in favor of assesses X X X X Extracts X X X X X X X X Extracts X X X X ..... pes. They relied on letter dated 20-1-2003 from Dr. A.K. Hairt, Chief Medical Officer (AKH), Directorate General of Health Services, Ministry of Health and Family Welfare, GOI, as reproduced in page 34 of the order-in-original reading as under : "Please refer to your letter number dated C.No. VIII/12/ACU/PD/ 195/Ch-902002/15580 dated 12-11-2002 seeking clarification on the Endoscopic coronary artery bypass system as to whether this equipment is entitled to benefit of Customs notification 21 of 2002 dated 1-3-2002 under serial no. 363, Entry number 82 of list 37 which reads as under :- (a) "Fibre optic endoscopes including, Paediatric resectoscope/audit resectoscope, Peritoneoscopes, Arthoscope, Microlaryngoscope, Fibreoptic Flexible Nasal Pharyngo Bronchoscope, Fibreoptic Flexible Laryngo Brochoscope, Video Laryngo Brochoscope and Video Oesophago Gastroscope, Stroboscope, Fibreoptic Flexible Oesophago Gastroscope." (b) endoscopic coronary artery bypass system is an advanced version of fibre-optic endoscope which is robotic controlled and has vast field of application. Though it is not in the listed category of fibre-optic endoscopes, the basic equipment is the same. It carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment Hospital of Andhra Pradesh; 11. The text of these opinions are re-produced below : "Opinion of Dr. Venugopal, Director, AIIMS, New Delhi as communicated vide his letter dated 21-11-2003 : The 'Fibre Optic Endoscope' is a part of 'Da Vinci Robotic Surgical System' for Coronary Bypass Surgery. The system consists of a surgeon console and surgical arm Cart which include two arms, Endoscope arm and the Image Processing Equipment. The endoscope is essential for visualization and dissection. This equipment is used in various Cardiac-thoracic and Vascular Surgical procedures and other specialties like Urology, Gynaecology and Obst. and General Surgery" Opinion of Dr. G.L.N. Malleshwara Rao, Superintendent of Osmania General Hospital, a leading Government Hospital of Andhra Pradesh, communicated vide his letter dated 19-11-2003. "The "da Vinci Surgical System" is not a fiber Optic Endoscope. It is a Robotic Surgical System with a rigid Thorocoscope integrated with a highly sophisticated computerized Robotic System. With this system? Surgery can be done without opening the chest and only by seeing in the monitor. From the images captured by the Thorososcope, a Robot will do t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ket to "Da Vinci Surgical System" in the bill of entry was not correct. Dr. Gopichand Mannam, Chief Cardio Thoracic Surgeon of M/s. CARE Hospital in his statement dated 10-10-2003 had also stated that Shri Arun K. Tiwari had brought a brochure to him in which the said system was described as 'Da Vinci Endoscopic Coronary Artery Bypass System' and he requested him to prepare a write up giving the description accordingly. All the above facts leads to the conclusion that Shri Arun K. Tiwari, Secretary, M/s. CARE, in spite of being aware of the fact that the system under import was not an endoscope, declared the same as an endoscope in the bill of entry and later on tried to justify the same with the brochure supplied by M/s. J. Mitra & Bros. and with the opinion of Dr. Gopichand Mannam, Chief Cardio Thoracic Surgeon of M/s. CARE Hospital. 14. We have considered the arguments of both sides. 15. In the matter of eligibility for the exemption we find that the opinion of the two medical experts in super specialty is fairly clear that the instrument is not a fiber optic endoscope for which exemption was made available. It is true that the Chief Medical Officer of DGHS has opined that tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndation under Section 114A is not legally sustainable. There might have been a case for imposing penalty under Section 112 on Care Foundation also. Since such penalty is not imposed by the adjudicating authority, we refrain from imposing such penalty. 20. The appellants argue that the goods could not have been confiscated because the assessment was provisional. This argument is legally not tenable. Under Section 111(m) of Customs Act, 1962 any goods which do not correspond in respect of value or in any other particular with the entry made under the Act is liable to confiscation. In this, a deliberate action to declare the goods as an endoscopic system, with an intention to claim the exemption, is evident even though there was no such description in the invoice or literature of the manufacturer. The additional description was purposely added. Such misdeclaration made would make the goods liable to confiscation. So we are not able to agree with the argument that the goods were not liable to confiscation. The confiscation is thus upheld. However considering the nature of the equipment to be one used in medical care and also the nature of misdeclaration involved and the letter issued ..... X X X X Extracts X X X X X X X X Extracts X X X X
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