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TMI Blog2019 (4) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... edly skin barrier 'Micropore Surgical Tapes' are entitled to the exemption even though the same were capable of being used, apart from Ostomy products, in other procedures also - The notification nowhere insists on the end-use of the products and, inasmuch as, the product in question is capable of being used as Ostomy products, the same would attract the exemption. The expression used in the notification is skin barrier 'Micropore Surgical Tapes' and there is no justification in interpreting the said expression as wafers . As such, the Revenue's stand that such expression only refers to the product Ostomy Wafers cannot be appreciated. According to us as long as the appellant's product satisfy the definition of the skin barrier Micropore Surgical Tapes , exemption would beavailable to them. As regards the interpretation of the notification, we can have guidance from the Hon'ble Supreme Court's decision in the case of Commissioner of Central Excise, Gujarat Vs M/s. Reliance Petroleum Ltd [2008 (5) TMI 13 - SUPREME COURT] wherein it was observed that an exemption notification has to be considered liberally and the benefit thereof should not be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r faceplates, flanges, male or female urinary incontinence sets, skin gels, in parts or sets 3. As per the information received by DRI, Ahmedabad, Revenue entertained a view that concessional rate of 5% BCD and nil CVD in terms of the said notification is being wrongly claimed by the importer, inasmuch as, the same is available only for Skin Barriers Micropore Surgical Tapes which are used as Ostomy products for managing Colostomy, Illcostomy, Ureterostomy, Illeal Conduit Urostomy Stoma and the appellants products did not fall under the said category, inasmuch as, the same are general purpose surgical tapes and not being exclusively used as Ostomy products. 4. Accordingly, investigations were conducted against the importers and the goods imported by them were seized under a Panchanama, dated 11.11.2008. Statements of the Managing Director of the company as also their Production Manager were recorded on various dates. As regards the tapes, it was informed that the same were imported under two brand names 'Hipore', and Trupore . Whereas, Hipore brand surgical tape was paper adhesive tapes, Trupore surgical tapes were Poly adhesive tapes. He furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict compliance. All these properties were also mentioned in 'Hipore' brand surgical, however, in the 'Trupore' brand surgical tapes the word 'microporous' was not mentioned. He also deposed that the lead brands of surgical tapes as the Micropore and Transpore were manufactured by M/s. 3M and these products were promoted as Ostomy care products and the tapes imported by them were considered as alternative and economical substitute for the above brands respectively. The statement of the Managing Director was again recorded on 12.11.2008, wherein, he disclosed about the fact of import of fabric, which was being further converted by them into surgical tapes. In respect of the demand on the fabrics, he admitted that there was a mistake on their part, inasmuch as, fabrics were also declared as tapes and he is ready to pay duty on the same. As the said part of the impugned order confirming demands in respect of the fabrics is not being challenged by the appellant in the present appeal, we are not adverting to the same. In the said statement, he again reiterated his stand that even though the said surgical tapes can be used in the cases other than Ostomy ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r use was important. It had been elaborated that:- Stomas require little care. The skin surrounding the stoma, called peristomal skin, must be protected from direct contact with discharge. This discharge is potentially irritating. The peristomal skin should be gently cleansed with plain soap (without moisturizer) that leaves no residue, and then rinsed with water after each change of your Ostomy pouching system. Water cannot enter the stoma because of its outward shape, so you won't need to cover it during bathing showering. Pouches come in different sizes and shapes to serve different functions. Today's pouches are light, odour-proof, leak proof and undetectable under clothing. Many pouches have clear or opaque options. Pouches also can come with a filter if your output is solid, as the filter allows gas to escape-but not odour. Filters also prevent gas from building up so the pouch does not inflate like a balloon. There are basically two types of pouches : Single Use - a closed end pouch that you remove and dispose of one to three times a day. These closed end pouches are a practical choice to use while traveling or for convenience at any time. These a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of web page of M/s. HMP Communications titled as Ostomy Wound Management' was also downloaded, as also, the web page of website of M/s. Convatec, USA. Further, the web page of web site of M/s. Medex Supply, wherein the product pouch for Ostomy Skin barriers was downloaded. From a conjoint reading of the information received from the websites, a view was entertained that the adhesive Skin Barrier Micropores Tapes/ Wafers attached to the pouches used in the wounds are the Ostomy products and adhesive skin barrier Micropores tapes cannot be considered as Ostomy appliances specifically. 6. In view of the above background, investigations were also made at other ends i.e., the distributors, sellers etc., wherein they clarified that such surgical tapes are sold over the counter as sales products and without the prescription of the doctor. It also came on record that orders for surgical tapes were also being procured from the hospitals. Revenue also downloaded the web pages of overseas manufacturers of the imported surgical adhesive tapes and found that the same are used for fixing the dressing at the skin or for fixing the syringe needle of the intravenous drip and is a commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ostomy procedure and various Ostomy products, which in our view is not of much importance, inasmuch as, it is the assessee's own case that such surgical tapes can be used in other procedures also. Learned advocate has rested his case on the simple reading of the said notification and the interpretation of the same and has impressed upon the point that the goods in question being admittedly skin barrier 'Micropore Surgical Tapes' are entitled to the exemption even though the same were capable of being used, apart from Ostomy products, in other procedures also. The notification nowhere insists on the end-use of the products and, inasmuch as, the product in question is capable of being used as Ostomy products, the same would attract the exemption. The Revenue has also referred to various printouts of web sites and certain documents from US patent and European patent to arrive at the conclusion that Micropore Surgical Tapes as mentioned in the notification refers to the product 'wafers' sold world over under the description of skin barrier Micropore Surgical Tapes /Wafers. We find no merit in the reasoning of the Revenue. The expression used in the notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral applications. As long as it is established that the 'Micropore Surgical Tapes' can also be used for Ostomy purposes, the same would get coverage under the said notification. It has to be observed here that the notification in question does not provide any end-use verification so as to hold that the items which are actually being used is Ostomy products, would get the exemption. 10. Our attention also stands brought to the product under reference i.e., Micropore being manufactured by M/s. 3M. The word Micropore has originated from the word microporous , which according to Wikipedia refers to a material containing pores with diameter 2nm. Microporous materials, apart from other use are used in the first aid to fix dressings to wounds and hold pouches in place. If necessary, it may be used to cover small wounds with gauge padding. The printout of web pages of the manufacturer of the Micropore Surgical Tapes M/s. 3M has specifically shown the surgical tapes as a support to Ostomy pouches. Similarly, it is further shown that cloth surgical tapes and surgical paper tapes are being used as accessories in Ostomy management. The expression skin barrier is generally used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipro GE Medical Systems reported as 2005 (185) E.L.T. 321 [CESTAT-Bang.] has held as under:- The fact that the Government wants the exemption to be extended, even when the Notification restricts the same to Ophthalmic applications, to other applications strengthens the case of the appellant as during the relevant period, there were no restriction in the notification to non-ophthalmic applications. Summing up, we hold that there is enough evidence to show that the impugned items are having A-scan facility and fall under Sl.No.351 of the Notification No. 17/2001. We also hold that the exemption Notification No. 16/2000-Cus. dated 1-3-2000 is not restricted to the equipments used in Ophthamology. If these items satisfy the conditions of Notification, the Probes, which are very necessary to use this scanner, would also be entitled for the exemption in terms of the Notification. Hence the charge of mis-declaration, cannot be sustained. Hence we set aside the duty demand. Consequently, the penalties are not-leviable. Therefore, we allow the appeals with consequential relief . At this stage, we may also note the decision of the Tribunal in the case of M/s. Lifeline Systems P. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the general purpose products as already observed by us. Hence, benefit cannot be disallowed on the sole ground that the product in question is not being used exclusively as Ostomy product. Merely because the tapes in question are being used as multiple use items, the same would not be a reason to deny the benefit of the notification. The Revenue cannot introduce the word 'solely' or 'exclusively' in the notification so as to hold that only those tapes which are exclusively used in Ostomy procedures would get the benefit. Revenue further failed to establish that there are specific surgical tapes which are meant for exclusive use as Ostomy product. According to the Revenue, the benefit is not required to be extended to the surgical tapes which can be used apart from Ostomy products, as general purpose products also. If that be so, we really fail to understand as to what type of surgical tapes would get covered by the notification, inasmuch as, there are no specific or specially made surgical tapes meant to be used only as Ostomy products. In view of the foregoing discussion and analysis, we conclude in favour of the appellant and hold that the tapes in question w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act vide the Customs (Amendment and Validation) Act, 2011 dated 16.09.2011, assigning the function of proper officers to various DRI officers with retrospective effect. For the period subsequent to the amendment, the matter came up before the Hon'ble Delhi High Court in the case of Mangli Impex vs. Union of India - 2016 (335) ELT 605 (Del.) in which the Hon'ble High Court inter alia held that even the newly inserted Section 28(11) does not empower the officers of DRI to issue the show cause notice or adjudicate for the period prior to 08.04.2011. Revenue challenged the decision of the Hon'ble High Court before the Hon'ble Supreme Court and the Apex Court stayed the judgment in the case of Mangli Impex vs. UOI reported as 2016 (339) ELT A49 (SC). However, on the same issue, Hon'ble Mumbai High Court as well as the Hon'ble High Court of Telengana Andhra Pradesh have taken a view contrary to the one taken by Hon'ble Delhi High Court. In the above scenario, the various Benches of the Tribunal, in cases where the show cause notice has been issued by DRI, have been setting aside the decisions of the adjudicating authority and rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouched and vice versa. A third Member is called upon to agree or disagree with the reason or conclusion made by both members on a particular point. The point being divergent before me, I am unable to agree or disagree. To me, the right resolution of the present situation would be to relist the matter for rehearing. However, as per Section 129C the third Member does not have power to relist or rehear the appeal but can only agree or disagree. For this reason, I am of the view that the Hon'ble President is to decide whether to relist the matter for hearing of both sides. The ld. counsel for appellant Shri S. Jaikumar has placed before me a decision in Amod Stampings Pvt. Ltd Vs. Commissioner of Customs - 2013 (289) ELT 421 (Guj.) to argue that when the points of reference framed by the Members is unclear, the matter can be sent back to the same Bench for reformulating the difference. I do not think that the problem is with formulation of the points of difference. In Acmi Industries Vs. Commissioner of Customs, Hyderabad - 2004 (174) ELT 213 (Tri. Bang.) in a similar situation when the third Member was finding it difficult to decide when there was not unanimity of opinion with reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence of opinions in this appeal. 22. The points of difference referred are as under:- (i) Whether the appeal is to be decided on merit and allowed as held by the Ids Member (Judicial)? Or (ii) Whether the impugned order is to be set aside and the matter remanded for decision on merit by the adjudicating authority after the availability of the decision of the Hon'ble Supreme Court in the case of Mangli Impex? 23. The issue in the appeal is with regard to the eligibility of concessional rate of duty on the goods imported by the appellant. Though the appellant has imported items such as non-woven fabrics and Skin Barriers Micropore Surgical Tapes, the dispute in this appeal is confined to the concessional rate of duty on Skin Barriers Micropore Surgical Tapes. The liability to pay merit duty on non-woven fabrics has been admitted by the ld. counsel for the appellant. The facts already having been narrated in detail by the Member (Judicial), I do not think it necessary to repeat the same. In para 2 of the order passed by the Member (Judicial), the relevant notification has been already reproduced. 24. The main contention put forward by the appellant is that as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s / Wafers which has stoma and can be aligned or attached to pouches alone are the products to which the notification would apply. It is also submitted by her that in the packaging of the impugned goods, it is not mentioned that these are exclusively used for ostomy procedures. 26. Heard both sides. 27. On perusal of the order passed by Ld. Judicial Member, it is seen that all the contentions raised by both sides, as noted above, have been discussed in detail. In page 6 of the said order, the medical literature obtained from website with regard to the Skin Barriers Micropore Surgical Tapes / Wafers used in the ostomy procedures and contentions of Revenue are stated. The ld. AR has emphasized that such products which can protect the skin from direct contact of the discharge from the body would only be covered under the notification. Thus, the main ground on which the benefit of notification is denied by the department is on the view that the Skin Barrier Micropore Surgical Tapes mentioned in the notification are those which are exclusively used in Ostomy procedures. 28. On careful perusal of the notification, I do not find that there is requirement for producing an end-use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Surgical Tapes have to be exclusively used for ostomy procedures. There are other products also which can be used for procedures other than ostomy. None of these products which can be used for general purpose are qualified by stating that the eligibility is available if they are used' only for ostomy. At the cost of repletion, there is no condition attached to the notification to produce end use certificate. Then nothing can be read into the notification to interpret that only goods which are exclusively used for ostomy procedures are eligible for exemption. Although Sl. No. 22 of List 37 in the notification starts with the words ostomy products (appliances) for managing Colostomy, Illcostomy, Ureterostomy . , since there are goods such as adhesive remover, skin gel etc. which are not exclusively used for ostomy, the benefit will be eligible to the Skin Barrier Micropore Surgical Tapes imported by the appellants. 31. Therefore, I agree with the ld. Judicial Member in holding that the benefit of notification cannot be denied and the appeal has to be allowed in its entirety. 32. Registry is directed to forward the appeal along with this order to the Regular Bench to for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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