9911796707
TMI Blog1983 (8) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... whose particulars are given below :- Tribunal's File No. No. of Appellate Collector's Order-in-Appeal No. of Assistant Collector's Order-in-Original 1. 513/80 S/49-23/80 Air, dated 25-7-1980 S/12-1036/79-80 ACU, dated 24-10-1979 2. 367/80 S/49-625/79 Air, dated 27-11-1979 S/12-1809/78-79, dated 22-2--1979 3. 91/81 S/49-936/80 Air dated 21-11-1980 S/12-3523/79-80 ACU dated 4-8-1980 4. 537/81 S/49-63/80 Air, dated 20-5-1980 S/12-1037/79-80 ACU, dated 22-11-1979. 2. These appeals relate to the classification under the Customs Tariff Schedule of what the appellants have called "medical reagents". For the sake of clarity, and without pre-judging the issue, it may be mentioned that the imported goods were made of filter paper which had been impregnated with various chemicals. As imported, they were in the form of sheets. These sheets were cut by the appellants and attached to thin strips of plastic. The articles thus prepared were marketed under the names of "Diastix,", "Uristix", etc. It will be convenient to refer to these articles as "reagent strips". The method of using these reagent strips would be seen from the following extract of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being attached to a plastic sheet which is cut into strips; (2) The imported goods are comparable to the medical appliances mentioned above, and should, therefore, be regarded as medical appliances in themselves; (3) Shri Ganesh quoted from the work "Diagnostic Aids in the Practice of Veterinary Medicine" by Harry H. Bewier. The above work contains the following passage :- "Urinalysis by the clinician can be performed very quickly and easily, thanks to the developers of tablet and dip and read test. If the clinician does not take full advantage of these important diagnostic tools he is missing much helpful information". Shri Ganesh referred to the expression "diagnostic tools" in the above extract. According to him, this expression is akin to the word "appliances"; (4) Shri Ganesh also quoted GRADHWOHL'S CLINICAL LABORATORY METHODS AND DIAGNOSIS in which there is the following statement : "A use of special tablets stix and tapes is available for extremely sensitive and rapid analysis of many constituents in urine and other fluids (Table 362)"; (5) Shri Ganesh also referred to dictionary definitions of the word "appliance". He quoted the Shorter Oxford Dic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Dunlop India(AIR 1977 S.C. 597) = 1983 E.L.T. 1566. He also referred to an order of the Tribunal in the case of Delhi Surgical and Dressings, reported in 1983 E.L.T. 575. 8. Shri Ganesh also referred to certain judgments in regard to Sales Tax, reported in AIR 1977 S.C. 32; 33 STC 333; and 31 STC 625. 9. Shri Ganesh also argued that prior to the introduction of the new Tariff through the Customs Tariff Act, 1975, the appellants had been importing the same "chemical reagents". According to him these were being classified under Item No. 28 of the old Tariff as contained in the Indian Tariff Act, 1934, as "chemicals, drugs and medicines, all sorts not otherwise specified". He argued that this would justify the assessment of the goods under the new Tariff within Heading No. 38.01/19. 10. Opposing the appellants' stand, Shri Kunhikrishnan pointed out that they had themselves referred to the goods as "raw materials" in their memorandum of appeal. It could also be seen from the article imported, which was in the form of sheets, and from the article finally marketed, which was in the form of a plastic strip with a small piece of the imported material at the tip, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen dealing with products which are highly technical and scientific in character, the words used in the Statute would have to be given only their technical or scientific meaning. In this case the goods were of a technical nature and therefore one should not go by trade terminology. 16. Shri Kunhikrishnan also referred to the three affidavits filed by the appellants. These were from three pathologists. He pointed out that all the three affidavits were in identical terms and were evidently given at the request of the appellants. He submitted that while a competent technical authority could testify through an affidavit, the contents must be within the field of his competence. The pathologists who had given these affidavits were not competent to suggest what the tariff classification should be, as the last sentence of each affidavit purported to do. He further submitted that the contents of the affidavits were basically relevant to the final product and not to the goods imported. 17. In reply, Shri J.R. Cama argued that Heading No. 48.01/21 might include impregnated and coated paper. These expressions should, however, be taken as covering cases where the impregnation did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so that it can be conveniently dipped inside the specimen, without wastage. The strips are contained in a bottle which contains a desiccant to absorb moisture, and to preserve the sensitive strips from contamination. It is also essential to have a Colour Chart with the aid of which the concentration of glucose, etc., can be read. Thus, the plastic strip with the imported material at the tip, the bottle, and particularly the Colour Chart affixed to the bottle, without which the percentage of glucose, etc., cannot be determined, form a set of components each of which is necessary for the test to be carried out. It is in this form that the goods are finally marketed, and it is in this form that they are suitable for the purpose for which they are marketed. There could be a case to argue that the entire set of articles as marketed would constitute a diagnostic or medical appliance. But this does not mean that the imported material in the form of sheets is itself a diagnostic or medical appliance. All that can be done with this material is to dip it in a specimen, when it will no doubt undergo a colour change. But without the other accompanying articles, and particularly the Colour Char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied. What these affidavits go to show is that the marketed goods would be very useful for the purposes of analysis and diagnosis. They do not carry any authority in the matter of classification for Customs Tariff purposes of the imported goods. 22. Shri Ganesh had also referred to a letter form the foreign manufacturers which he said was on the way to them, and whose contents he indicated. He stated that this was in response to a query from our predecessor Bench (vide para 5 above). From the record, we do not find that a specific query in this regard was addressed to Shri Ganesh when the matter came up before them on 22-6-1983. The record shows that Shri Ganesh sought permission to file a paper book, which would include copies of show cause notices and replies as also copies of the memoranda of appeal. While allowing him to file the paper book, it was recorded that the question of admissibility of the documents which were not already on the Revenue records would be considered at the time of hearing. We find that the letter now being referred to is an altogether new document, and at the time of hearing it was not yet available. We do not think it would be proper to take thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoked, the appropriate description would be as "impregnated paper". We do not think that either Rule 2(b) or Rule 3(b), invoked by Shri Kunhikrishnan, would apply to this case. It appears to us that since we have to choose between the expression "medical........instruments and appliances" and "impregnated paper or paper board", the choice is clearly determined by Rule 3(a) of the Interpretative Rules, which states that the Heading which provides the most specific description shall be preferred. We have no doubt that of the two the more specific description is the latter one. 25. Shri Ganesh had drawn our attention to the Tribunal's Order in the case of Delhi Surgical & Dressings, reported in 1983 E.L.T. 575. In that case the goos consisted of "Blood counting chambers" and "Pipettes". It was held that the blood counting chambers could not be treated as "laboratory glassware" because they were not plain glass slides but made by fusing into the polished surface of the counting areas, a very thin semi-transparent layer of Rhodium with greatest precision. The lines were ruled through this metal layer and appeared under the microscope as a net of very bright radiant lines. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
