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TMI Blog2007 (4) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... . Subsequently proceedings were initiated against the appellants, by way of issuance of show cause notice dated 19-4-2003, proposing denial of the Notification on the ground that the goods cannot be considered as "Vascular Clamp". Reliance for the above proposition was made on the definition of Vascular Clamp, obtained from the official Website of Food and Drug Administration Department of Health and Human Services, Government of USA. After proper adjudication, the Deputy Commissioner confirmed the demand of duty of Rs. 31,18,742/- in terms of the provisions of Section 28 of the Customs Act 1962, in respect of three Bills of Entry, along with confirmation of interest. He also ordered for assessment of the 4th live Bills of Entry dated 3-4-2002, without allowing the benefit of exemption. On appeal against the above order, the Commissioner (Appeals) rejected the same. Hence the present appeal. 3. We have heard Shri Willingdon Christian, Ld. Advocate, appearing for the appellants and Shri Samir Chitkara, Ld. SDR, appearing for the revenue. 4. The short question required to be decided in the present appeal is as to whether the product "Octopus 3-0 Tissue Stabilizer/Starfish Heart P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y also submitted that the said term "Vascular Clamp" is of wide amplitude implying an instrument which inter-alia performs the functions of clamping the blood vessels of Vascular Clamp". Apart from the above, it is also the appellant's contention that Bills of Entry were finally assessed and no appeal was filed there against. As such, by relying upon various decisions, it has been strongly contended that demand of duty, without putting the assessed Bills of Entry under challenge before higher appellate forum, cannot be made against them. 5. We find that at the time of initial clearance of the goods by extending the benefit of exemption, the opinion of Dr. Varsha A Shah, Associate Professor, Institute of Cardiology Research Centre, Ahmedabad, was obtained. The opinion, advanced vide her letter dated 12-1-2002, and addressed to the Deputy Commissioner of Customs, Ahmedabad, is to the following effect :- "It is to state that Octopus 3-0 Tissue Stabilizer/Starfish Heart Positioner can be considered a Vascular Clamp". 6. It is further seen that during the course of adjudication, the appellants produced the opinion of two hospitals. For better appreciation, the same are being r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matory, inasmuch as the expression used is "can be" and not "can". Further same is not being followed on the ground that the same was given by Dr. Varsha A. Shah, in her personal capacity and is not the opinion of the hospital. It stands further observed by the adjudicating authority that she was asked to clarify as to whether the same carries the approval of the Head of the Institute. Since no intimation has been received from her, the said opinion has to be rejected. 9. We do not find the above reason adopted by the adjudicating authority as sufficient enough to discard the opinion of the Dr. Varsha A. Shah, who is the Associate Professor of Institute of Cardiology and Research Centre, Ahmedabad. Whether the opinion was given in her personal capacity or the consent and approval of Institute was taken, makes no difference to the opinion given by her, in as much as the same remains the opinion of an expert on the issue. Further, the expression "can be considered a Vascular Clamp" would not dilute the importance of the said opinion. It is a well known and well established fact that technologies are advancing in the medical field on day-to-day basis and what may be a typical Vascul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lamp, down loaded from the internet at website of Food and Drug Administration Department of Human Services of USA Government, which reads as follows "Sec. 870.4450 Vascular Clamp (a) Identification : A vascular clamp is a surgical instrument used to occlude a blood vessel temporarily. (b) Classification : class II (performance standards)" 14. In view of the above definition, it has been concluded that "Vascular Clamp" is a surgical equipment used to occlude (to log a blood vessel temporarily, whereas the item in question is used for stabilizing the heart and keep it in position when the surgery is performed. The function of the item was demonstrated before the adjudicating authority with the help of a computer, and it has been concluded by him that the function of the same is to arrest beating of that part of the heart where the surgery is to be performed. As such, he has concluded that the same has got nothing to do with the clogging of a blood vessel. As against the above, the appellants had strongly contended that the said definition Vascular Clamp downloaded from internet has given a simplest and basic meaning of a normal Vascular Clamp, whereas their product has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Vascular system during surgery. The same objectives are obtained by a Clamp. Merely because the goods have been called as stabilizer by the manufacture instead of being nomenclature as Clamp, would not lead us to hold that the same is not a Clamp. 18. The above discussion lead us to an inevitable conclusion that the product is a Vascular Clamp thus entitled to exemption in terms of the Notification. The said Notification are meant for granting relief to the import of Cardio vascular Special Instruments and to lower the cost or otherwise of expensive heart surgery. As such, it can be inferred that the intention of the legislature is to exempt the import of the instruments used in the Cardio surgeries. Any interpretation, which instead of furthering the intention of the legislature puts break to the same, is required to be avoided. There is nothing to suggest that the exemption applies only to stereo type Vascular Clamp and is not applicable to the improvised version of the same, which Clamp on vessel and tissue around the Coronary Arterial on which surgery is to be done and also performs the additional function of keeping the organ in requisite position. 19. As such, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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