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TMI Blog2022 (11) TMI 871X X X X Extracts X X X X X X X X Extracts X X X X ..... . Since this is already concluded by CESTAT, on this ground alone, the impugned order requires to be quashed and set aside. First of all this conclusion is erroneous particularly in view of findings of the CESTAT in M/S BAYER PHARMACEUTICALS PVT LTD VERSUS COMMISSIONER OF CUSTOMS, MUMBAI [ 2015 (11) TMI 943 - CESTAT MUMBAI] . Moreover, the said notification will apply only where goods are classified under item 9018. The notification would not apply when goods are classified under 9027. Therefore, the attempt of giving reasons or explaining how the notification is applicable only to those goods classified under item 9018 could be applicable to goods under item 9027 is not acceptable. Non considering and following Bayer (supra) itself is a reason for us to interfere under Article 226 of the Constitution of India. We entirely agree with the conclusions/findings of CESTAT in Bayer [ 2015 (11) TMI 943 - CESTAT MUMBAI] since the goods are identical. - Demand set aside. - WRIT PETITION NO. 5992 OF 2021 - - - Dated:- 10-11-2022 - K. R. SHRIRAM A. S. DOCTOR, JJ. Mr. Rafique Dada, Senior Advocate a/w Mr. Mihir Deshmukh, Mr. Zubair R. Dada, Mr. Rajan Mishra i/by Patankar and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter and granted personal hearing/opportunity for making submissions with documentary evidence. This was followed by a show cause notice dated 30th June, 2020 mentioning the differential duty and calling upon Petitioner to show cause as to why the differential duty of Rs.30,79,295/- should not be paid. It was mentioned in the show cause notice that subject goods fall under chapter heading 9018 whereas Petitioner has classified it under chapter heading 9027 and therefore Petitioner has misdeclared the goods and demanded differential duty of Rs.30,79,295/- was payable. 5. Petitioner filed reply to the show cause notice and submitted that the goods were in fact classifiable under chapter 9027. Petitioner also submitted that Customs, Excise and Service Tax Appellate Tribunal (CESTAT) in the case of Bayer Pharmaceuticals Pvt. Ltd. Vs. Commissioner of Customs, Mumbai 2016 (331) E.L.T. 317 has held that these goods, i.e., Glucometers consisting of Glucose meter, test strips, Lancet device and user guide will get classified under heading 9027 and not under 9018, which is binding on the adjudicating authority. It was also brought to the notice that even the Appellate Authority in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Heading 90.18 as an instrument or appliance used in medical science. This has resulted in judicial indiscipline. He relied on the Supreme Court judgement in the case of Birla Corporation Ltd. Vs. Commissioner 2005 (186) ELT 266 (SC). According to him, the product in question in the present case is identical to the product in respect of which the order dated 12.11.2008 was passed by the Commissioner (Appeals). 3.1. The further contention is that the function of the Glucose meter is to undertake chemical analysis of the human blood and find out the level of glucose present in the blood sample and measure it in terms of numerical value. Therefore the product in question is an instrument for chemical analysis appropriately classifiable under Heading 90.27. He stated that internationally, Glucose meters are classified under heading 90.27 only. He referred to the United States Customs Department Ruling on this issue which classifies similar products under Heading 90.27. He also referred to the Canadian International Trade Tribunal which took the view that glucose testing devices fall under heading 90.27 only. And these countries, like India, also follow the Customs Tariff based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... And the also showed product in question having the brand name breeze 2 meter which consists of Glucose meter and user guide. A point to be examined is whether the two products would be classified separately only because in the first case the product includes lancets and test strips. We are of the view that the essential character of the goods in both cases is to draw the blood and test it for glucose content. With changes in technology, the glucose meter can be expected to become more sophisticated and compact without change in its essential function. The essential function of a Glucose meter is to draw the blood as well as test the blood for Glucose level. The product in question is also able to draw the blood as well as test the blood. The testing of blood and then its analysis for indicating blood sugar content as revealed by the Glucometer is undisputedly the outcome of a chemical analysis. That is, the Glucometer is an instrument for chemical analysis. Having noted the essential characteristic of both a Glucose meter system with strips and lancets and the Glucose meter without strips, it would be illogical to say that the Glucose meter with strips will be classifiable under h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -CUS dated 1-3-2005. 8. Impugned order is set aside. Appeal allowed. 8. Mr. Mishra at the outset submitted that the Petition ought to be rejected since Petitioner has an alternate efficacious remedy of filing an Appeal before CESTAT. Mr. Mishra relied upon the Judgment of this Court in Hover Automotive India Private Limited Vs. Union of India Ors. Writ Petition (O.S.) No.2223 of 2021 dated 29th October, 2021 (unreported) to submit that Writ Petition can only be entertained in exceptional circumstances where there is a breach of fundamental rights, violation of principles of natural justice, excess of jurisdiction or a challenge to the various of the statute or delegated legislation. Mr. Mishra submitted since none of these circumstances arises in the case at hand, Court should direct Petitioner to exercise the alternate remedy. Mr. Mishra also relied upon a Judgment of the Hon ble Apex Court in Union of India Vs. Coastal Container Transporters Association 2019 (22) G.S.T.L. 481 (S.C.) to submit that only if there was matter of jurisdiction or violation of principles of natural justice should the Court entertain the Petition. This Judgment is not applicable in ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther chapter Blood Glucose Monitoring System (Glucometer) and test strips 5% - - From above, it is seen that in notification no.50/2017 at sr. no. 576, Blood Glucose Monitoring System (Glucometer) and test strips have been specifically mentioned attracting standard rate of duty of 5%. Thus the notification envisages that the said goods classified under 90189099 where basic rate of duty is 10% will attract effective 5% duty under aforesaid notification. Whereas, if classified under 90278090, the basic duty rate is Nil and therefore it would not be so that vide aforesaid notification, the duty rate would be increased from 0% to 5%. So it is evident that the said goods are rightly classifiable under 90189099 with effective BCD @5%. The above notification was issued on 30.06.2017 and therefore the event of charging of duty on the impugned goods as per the same would prevail over any notification which was issued prior to the said date. Further, in view of above notification, the said case is distinguished from the case of Bayer Pharmaceuticals Pvt. Ltd. Submitted by the party 11. First of al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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