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TMI Blog2022 (5) TMI 745X X X X Extracts X X X X X X X X Extracts X X X X ..... of Tribunal in the case of M/S. SUTURES INDIA P. LTD. VERSUS COMMISSIONER OF CENTRAL CUSTOMS, CHENNAI [ 2019 (4) TMI 538 - CESTAT CHENNAI] cannot be relied upon. It is found that the appellants have submitted that there has been a punctuation error in the notification giving rise to an interpretation that the exemption is not applicable in the impugned goods. It is found that any such error in the notification, if any, should have been brought to the notice of the concerned authorities and got corrected. This Tribunal being a creature of statute cannot sit in judgment on interpretation of a notification or the purport of the notification. However, the Bench is not Writ Court to decide the property of the notification being creature of the statute. This Bench has no jurisdiction to interpret the intention of the notification. In the case of 3M INDIA LTD, SHRI KULVEEN SING BALI, SHRI M.S. SWAMINATHAN VERSUS COMMISSIONER OF CUSTOMS, BANGALORE-I [ 2020 (7) TMI 93 - CESTAT BANGALORE] , Tribunal has discussed the issue at length and observed that the product named Skin Barriers Micropore Surgical Tapes exists and to that extent the arguments of the appellants are not acceptable. The arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. Hence, these appeals. 4. Learned Counsel appearing for the appellants though raised issue of jurisdiction of ADG, DRI to issue show-cause notice during the course of arguments but they submit that they are not pressing for the issue. 5. Learned Counsels submit that the issue is squarely covered in their favour by a decision of Chennai Bench of the Tribunal in the case of Sutures India Pvt. Ltd. Vs. Commissioner of Customs - 2019 (370) ELT 1257 (Tri-Chennai). Learned Counsels also fairly submit that there is a decision against the appellants in the case of 3M India Ltd. vs. Commissioner of Customs, Bangalore-I - 2020 (373) ELT 385 (Tri-Bang), which has distinguished the ratio of the judgment in the case of Sutures India Pvt. Ltd. (supra). This decision of Bangalore Bench of the Tribunal has been upheld by the Hon'ble Supreme Court reported at 2021-VIL-28-SC-CU. 6. Learned Counsels for the appellants submit that the adjudicating authority solely relied on incorrect understanding of the product name "Wafer" and held that they are not "Skin Barriers Micropore Surgical Tapes"; the adjudicating authority held that impugned goods is for general use and is not specific for "Osto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainment Pvt. Ltd.- 2015 (329) ELT 50 (Bom) (c) Continental foundation Jt. Venture Vs. Commissioner of Central Excise - 2007 (216) ELT 177 (SC) (d) Jayaswal Neco Industries Ltd. Vs. Commissioner of Central Excise - 2016 (344) ELT 578 (Tri) 9. Learned Authorized Representative for the Department reiterates the findings of the impugned order and relied upon the order of 3M India Ltd. decided by the Bangalore Bench. 10. Heard both sides and perused the records of the case. 11. As submitted by the Counsels, the issue is no longer res integra as being decided by the Bangalore Bench in the case of 3M India Ltd. (supra). It has also been brought to our notice that the same has been upheld by the Apex Court. Therefore, the decision of the Bangalore Bench has attained finality and further process by the decision of Tribunal in the case of Sutures India Pvt. Ltd. (supra) cannot be relied upon. 12. We find that the appellants have submitted that there has been a punctuation error in the notification giving rise to an interpretation that the exemption is not applicable in the impugned goods. We find that any such error in the notification, if any, should have been brought to the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government by a notification dated 1-5-1970 divided the tea growing areas into Zones and fixed the rate of duty on tea produced in the said areas. At the relevant time, Dibrugarh was a sub-division in the District of Lakhimpur in Zone V. As per notification dated 22-9-1971, the Assam Government made the sub-division of Dibrugarh as a separate district with effect from 2-10-1971. Subsequently, the Central Government by superseding the earlier notification of 1970, made several zones in place of 5 Zones by a notification dated 5-11-1981 but the District of Dibrugarh was not shown separately. This was done subsequently by a notification dated 28-1-1982. The issue before the Hon'ble High Court was whether the duty should be charged on the Tea produced in District of Dibrugarh during 5-11-1981 to 28-1-1982, as per rated applicable in the Zone V, viz., District of Lakhimpur or residuary Zone VII. In this contest, the Hon'ble Court examined the issue whether there was an omission to include the word Dibrugarh in the Central Government notification of 5-11-1981 and whether the omission could be supplied. The Hon'ble High Court held as under : "The basic rule is that the Court sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e find that the impugned order is correct as far as it holds that the items imported by the appellants are not eligible for the exemption contained in the Notification No. 21/2002-Cus., dated 1-3- 2002. The appellants argue that another part of the notification mentions 'bag closing clamps karaya seals paste or powder' whereas no such products are available and therefore, it need to be understood that notification misses out on certain symbols like (,). We find that as the items described therein are not under discussion, we need not turn our attention to the same. 24. The appellants have argued that alternatively, the impugned items are eligible for exemption as they are covered by the other part of the list under 'Ostomy products (Appliances) for managing Colostomy, Illcostomy, Ureterostomy, Illeal Conduit Urostomy Stoma cases such as bags, belts, adhesives seals or discs or rolls adhesive remover; we find that the impugned goods cannot be called appliances by any stretch of imagination. We will go in to find the meaning of appliance. Merriam Webster dictionary defines appliance as (https://www.merriamwebster. com/dictionary/appliance). 1. an act of applying 2. a : a piece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, at Chennai in the case of Sutures India Pvt. Ltd. (Supra), stating that the Tribunal has gone into the imports of similar products and decided that the applicability of notification has been decided in appellants favour. Per contra, the Learned Authorised Representative submits that the coordinate Bench has arrived at the said decision on the premise that the said goods and other items like adhesive seals, adhesive remover, skin gels are items used for general purposes but find use also in ostomy procedures; there is no end use condition/exclusive use condition that such products need to be used only for ostomy applications; it is enough if the impugned goods are capable of being used in relation to ostomy procedure; department has not been able to show any product which fits into the category of surgical tapes meant for Ostomy only. He further distinguishes the decision of the coordinate Bench stating that the Bench did not consider the fact that the item eligible for the benefit is a combination product of Skin Barrier Micropore Surgical Tape which combines the dual properties of preventing the seepage of the ostomy discharge onto the surrounding skin thus preventing harm to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Srikumar Agencies Civil Appeal Nos. 4872-4892 of 2000, decided on 27-11-2008 [2008 (232) E.L.T. 577 (S.C.) = 2009 (13) S.T.R. 3 (S.C.)] observed that : 5. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have become locus classicus : "Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive." *** *** *** "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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