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TMI Blog2018 (10) TMI 1791X X X X Extracts X X X X X X X X Extracts X X X X ..... der Notification No. 21/2002-Cus., dated 1-3-2002 and 6/2006-C.E., dated 1-3-2006 as amended. The Serial No. 370 of the said Notification No. 21/2002-Cus., dated 1-3-2002, covers Spinal Needle imported by the appellant. Serial No. 370 of the said Notification includes, "Assistive devices, rehabilitation aids and other goods for disabled, specified in List 41". All items in the List No. 41 would fall under Serial No. 370 of the said Notification. The order in assessment dated 31-3-2008 was passed denying the benefit of Notification as claimed. The appellant did not pay the duty being so assessed and did not take delivery of the goods and filed a Writ Petition No. 527 of 2008 before the Hon'ble High Court of Calcutta. The Hon'ble High Court vide its judgment dated 3-6-2008, directed to re-adjudicate the case after following the principles of natural justice. Accordingly, show cause notice dated 10-7-2008 was issued. The Order-in-Original dated 26-7-2008 was passed whereby it was concluded that the imported Spinal Needles were primarily not meant for the disabled and the appellant was not entitled for the exemption benefit vide Notification No. 21/2002-Cus., dated 1-3-2002, Serial No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts used in surgery in spine. In the order he expressed doubt whether spinal needle could be termed as spinal instrument. 3.6 The appellant further states that in any event in the alternative to the claim of the petitioner to the exemption notification under Serial No. 41 it would also be covered under Serial No. 33 of List No. 37 Item No. 34 which runs as follows : "Disposable and non-disposable cannula for aorts, vena cavae and similar veins and blood vessels and cannula for intra-corporal spaces." Spinal needle will qualify as cannula for intra-corporal space. IV needles, spinal needles, IV Catheters qualify as cannula. Under the said entry duty in excess of 5% is exempted. Cannula is defined in the shorter Oxford English Dictionary as follows: A tabular instrument introduced into a cavity or turner in order to allow fluid to escape. On the basis of the Medical Certificate, Customs Authorities at Chennai have been releasing the spinal needles by extending the benefit of notification under Serial No. 365. Printouts evidencing clearance of spinal needle by extending benefit of exemption notification under Serial No. 363 is annexed hereto. 3.7 The needle impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Surgical (P) Ltd. (supra). In the case of C.C.E., Coimbatore v. Saberwal Surgical (P) Ltd. (supra) the point of dispute was as to whether "top brand scalp infusion set" imported by the assessee - M/s. Saberwal Surgical (P) Ltd. were eligible for Customs duty exemption under Notification No. 55/95-Cus., the Sl. No. 34 of which covered "disposable and non-disposable Cannula for aorta, vena cavae and similar veins and blood vessels and Cannula for intra-corporal spaces". In that case it was not the claim of the assessee that the scalp vein infusion sets were meant for aorta or vena cavae or similar veins. The Tribunal in para 7 of the judgment made the following observations - "The respondent clearly admit that the same is not used in aorta, vena cavae and similar veins. But, however, they are stating that it being a Cannula, it is for use in blood vessels. The term blood vessel as explained in all the certificates include 'arteries and veins'. The term 'similar veins' in Sl. No. 34 of the notification appearing earlier to the term 'blood vessel' refers only to the term aorta and vena cavae. Therefore, 'Cannula' used for aorta and vena cavae and similar veins are different in na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l supplies supplied to the Doctors are liable to excise duty. Elaborate consideration may not be forthcoming in these judgments, but, in our view, the issue stands concluded. We say so for the reason that this Court, in catena of cases, has opined that in case, the appeal has been dismissed in the absence of detailed reasons or without reasons, such order will entail the application of the doctrine of merger, wherein the superior court upholds the decision of the Lower Court from which the appeal has arisen. The Apex Court in the case of V.M. Salgaocar & Bros. (P) Ltd. v. C.I.T., (2000) 5 SCC 373, has held as under :- "8 Different considerations apply when a special leave petition under Article 136 of the Constitution is simply dismissed by saying "dismissed" and an appeal provided under Article 133 is dismissed also with the words "the appeal is dismissed". In the former case it has been laid by this Court that when a special leave petition is dismissed this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. But what the Court means is that it does not consider it to be a fit case for exercise of its jurisdiction under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent of the expression "for aorta, vena cavae and similar veins" and that the word "similar" would not qualify the expression "blood vessels" and accordingly IV Cannula meant for any blood vessels would be covered by this entry and would be eligible for exemption. This decision of the Tribunal has been affirmed by the Apex Court vide judgment reported in 2000 (121) E.L.T. A74 (S.C.) by dismissing the civil appeal. In view of the above judgments of the Apex Court, the decision of the Apex Court in the case of C.C.E., Coimbatore v. Saberwal Surgical (P) Ltd. (supra) has to be treated as binding precedent even though while dismissing the civil appeal and affirming the Tribunal's order, no reasons has been recorded. In view of this, we hold that the IV Cannula being manufactured by the appellant would be covered by entry in the List 37 of Notification No. 21/2002-Cus., and accordingly would be exempt from Central Excise duty under Notification No. 6/2003-C.E., and its successor notifications. In this regard, the plea of the learned Counsel for the Department that "Similar veins and blood vessels" must be construed in ejusdem generis with preceding expression and that in view of the Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X
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