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TMI Blog2015 (9) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... n under notification No. 20/1999, would be material in deciding whether Section 111(m) are attracted as to amount to mis-declaration of description of goods resulting in confiscation of said goods, fine, and penalty – Therefore, appeal of assesse allowed and order of tribunal imposing penalty set aside – Decided in favour of Assesse. - Civil Appeal No. 2603 of 2006, Civil Appeal No. 4374 of 2006 - - - Dated:- 2-9-2015 - A. K. Sikri And R. F. Nariman, JJ. For the Petitioner : Ms Ruby Singh Ahuja, Adv. and Mr B Krishna Prasad, Adv. For the Respondent : Mr Yashank Adhyaru, Sr. Adv., Ms Shirin Khajuria, Adv. and Mr B Krishna Prasad, Adv. JUDGMENT R. F. Nariman, J. 1. The present case relates to appeals filed both by the assessee and by the revenue against the judgment dated 20 th January, 2006 passed by Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as CESTAT ). The appellant company had been importing various models of diagnostic equipment such as BTS 302, BTS 310, BTS 320 and BTS 370 manufactured and supplied M/s Bio Systems, Barcelona, Spain. On 27th May, 1999, the appellant in its Bill of Entry filed at Hyderabad for clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xempts medical equipments specified in List 21, serial No. 66 of which reads as follows:- SI No. 66: Blood Gas Analyser (including cartridges, if any) Sodium Potassium Analyser, Auto Analyser for Enzymes, Drug Levels and Biochemical Investigations, or a combination of two or more of the aforesaid. 3. The assessee was given a hearing on 9 th January, 2001 by the learned Commissioner of Customs, Hyderabad. In a detailed order dated 1st March, 2001, the learned Commissioner went through the show cause notice and the reply filed by the assessee. He correctly concluded that the issue for determination was whether the impugned goods were qualified to be called auto analysers of Enzymes, drug levels and biochemical investigations. In this connection, he referred to a book by Tietz Text Book of Clinical Chemistry , second edition, edited by Carl A. Burtis and Edward R. Ashwood. More importantly, in para 46, which deserves to be quoted, the Commissioner found:- 46. This very question came up for examination before the conference of Commissioners of Customs held in Cochin in October 1995 in the context of Notification No. 55/95-Cus. dated 16.3.95. It would be important and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Commissioners of Customs. 4. He further held: 47. The word photometer used by M/ s. Bio Systems, Barcelona, Spain to describe two out of the four models of the impugned goods (BTS 302 and BTS 310) has been the fundamental cause for generating doubts in the minds of the investigating officers about the bonafides of the importer in availing full exemption on the impugned goods from time to time and also in provoking the importer to resort to ways and means to overcome problems with Customs in the matter of assessment of the impugned goods. Photometer is a generic expression meant to refer to a wide range of instruments used for taking measurements of light or electro magnetic radiation. Photometry is a branch of physics dealing with measurement of intensity of light sources. Instruments used for such measurements are called Photometers. However the principle of photometry has found application in the field of clinical chemistry and auto analysers are one type of medical equipment which have been invented incorporating the principle of photometry applied to investigations in clinical laboratories. The catalogues of the manufacturer for the four models of the impugned good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter in their reply as Exhibits V and VI to the letter of the importer dated 24.12.99 sent in reply to the show cause notice, I find that there is absolutely no merit in this allegation that the need to program the impugned goods according to the needs of each individual customer would for that matter render the goods into something entirely different from auto analyser. It is common knowledge that auto analysers come both as closed system and as open systems enabling customers to program them according to their own needs when they are open system models. In fact open systems are more popular these days because it allows the customer the flexibility to adapt the system to his own needs. 6. Finally, he ordered:- ORDER (i) Under Section 111(m) of the Customs Act, 1962 I order confiscation of goods valued at ₹ 26,97,741/- seized on 8.6.99. However under Section 125 of the Customs Act, 1962 I give M/s. Dr. Reddy's Laboratories Ltd., the option to redeem the said goods by paying a fine of ₹ 1,00,000/- (Rupees one lakh only). Since the goods have already been provisionally released to the importer I order that the fine amount of rupees one lakh only be rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We are at loss to understand what is meant by this statement. The evidence analysed by the investigating officer in the form of statements made by six persons affiliated to the assessee led to confiscation of the goods and imposition of penalty. Without any analysis of whether the imported equipments were, in fact, auto analysers or were only photometers, the CESTAT went on to conclude that one can never come to a conclusion that a photometer is the same as an auto analyser. The learned Commissioner had held that a photometer is a generic expression and auto analysers are photometers with software installed in them which could then perform various operations. The CESTAT in finding this logic faulty has not given any reason for disregarding the same. It then goes on to say that the whole of paragraph 46 of the Commissioner's order is irrelevant. In this paragraph the learned Commissioner referred to the Commissioners' Conference to arrive at the conclusion that since the process of analysis is automatic, though mixing of samples may be done manually, yet since analysis has to be done automatically, an analyser would fall under the expression auto analysers for enzymes, d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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