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TMI Blog2023 (3) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... eration is more sophisticated than the glucosemeter. The testing of blood by analyzing and indicating the various parameters is undisputedly an outcome of chemical analysis, etc. In the facts and circumstances, we find that the heading 9027, which covers instruments for chemical analysis is more specific than CTH 9018, which covers instruments used in medical/surgical science, etc. Further, we find that Rule 3 of General Rules of Interpretation provides that a specific description is to be preferred over a general description. The Court Below have erred in deciding the classification relying on the facts that the goods in question are mostly used on bedside or in an ICU - the goods under consideration are appropriately classifiable under CTH 9027. Extended period of limitation - HELD THAT:- The extended period of limitation is not attracted in the facts and circumstances, the issue being wholly interpretational in nature and there being no res judicata in tax matters. Appeal allowed. - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri Rajiv Sindhi, Co. Representative (Managing Director) for the appellant. Shri Amresh, Authorised Representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, merits classification under it. 4. The Commissioner (Appeals) in order-in-appeal no.20/2011 (H-II)-Cus dated 18.05.2011(for past imports) has held that cartridges in question are accessories of I. Stat Blood Analyser, which is an instrument falling under 9018 of CTH. 5. The show cause notice dated 05.04.2019 was adjudicated on contest vide order-in-original dated 4.2.2020 holding that the goods in question are classifiable under CTH 90181990 and further denied the benefit of Notification No. 24/2005-Cus and Notification No.25/2005 Customs, both dated 1st March 2005. 6. It was also held that the goods imported vide bills of entry as per Annexure (during July, 2017 to Feb., 2018) to the show cause notice are liable for confiscation, as the goods are not available, no redemption fine is imposed. Further, direction to pay differential duty of Rs. 1,51,48,545/- was made under Section 28(8) of the Customs Act along with interest. Further, equal penalty of the differential duty was imposed under such 114 A of the Customs Act. 7. The proposed penalty under Section 112 (a)(ii) of the Customs Act was dropped. 8. Being aggrieved, the Appellant is in appeal before this Tribunal. 9. Heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e customs tariff in its eight digit avtar which came into effect from 2003 is based on the HSN and the explanatory notes to the HSN are treated as of practically binding value in interpreting entries under the Customs Tariff, where the entries are aligned to the entries in the HSN. 10.4 The HC in turn had relied on the judgement of the Apex Court in the case of Woodcraft Products Vs. CCE and CC Vs. Business Forms while ruling so. 10.5 In light of the above two rulings of higher courts, the lower authority cannot ignore the explanatory notes to the chapter, which clearly validate appellant s contention on the classification under 9027 90, which is specific to the blood gas analyser. 10.6 Another important fact missed completely by the lower authority is the fact that an analyser which does chemical analysis, whether in a house, a laboratory or in an ICU of a hospital, still remains an analyser. The location of the analyser and the source of power used, battery or live current, does not change its function and/or its classification, which is clearly based on the functionality of the product and not the location or the source of power. 10.7 Appellant further relies on the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and cleared from customs. 10.12 In the light of the above facts, there is no case of mis-declaration, goods are not liable to be confiscated under 111(m) of the Customs Act, 1962. 10.13 The Tribunal in the case of Sirthai super Ware India Ltd. Vs. CC, Mumbai [2020 (371) ELT 324] held that the fact that goods correspond to the declaration in respect of the description and value is sufficient to take goods away from the application of Section 111(m) and (o) of the Act. Similar rulings were rendered by the Tribunal in the case of Kores India Ltd. Vs. CC, Nava Sheva [2019 (370) ELT 1444]. The Tribunal in the case of Tetra Pak India Ltd. Vs. CC, Nava Sheva [ 2019(370) ELT 1289] held that even when consequences of mis-declaration were to benefit the importer, the goods are not liable to confiscation under 111 (m) of the Act. The appellant relies on these decisions of the Tribunal and pleads that the court below acted in gross violation of pronouncements of higher judicial forums on the interpretation of Section 111(m). The impugned order may be set aside in so far as the liability of the impugned goods to confiscation under the said section. Penalty under Section 114 A is also not sustai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instrument (I Stat System), since without the cartridges, the instrument cannot function. All reagents, technology and membrane etc. are embedded in the cartridges. A few drops of blood are put up on the cartridge and then the same is inserted in the I Stat Instrument and immediately after two minutes, the analysis results are available on the screen. The readings are utilized for assessing the condition of the patient with regard to various parameters for monitoring, etc. The instrument is easy to use, reliable and portable, suitable for use at various places like patient s bedside, etc. The device satisfies the function associated with instruments connected with the checking of physiology parameters of patient. It is further urged that Rule 2 of General Rule of Interpretation is not applicable. Further, Rule 3 stipulates that the heading, which provides the most specific description shall be preferred to the heading providing a general description. Further, urges that I Stat Instrument is used for analysis of blood, which provides readings as to chemistry, electrolyte, hematology, blood gases, coagulation, cardiac markers, etc. Further, the goods in question are being used in me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood glucose like sodium, potassium, calcium, hemoglobin, blood gases, ACT, coagulation parameters, cardiac markers, etc. The competing headings for classification of the impugned goods are extracted below:- 9027 Instruments and apparatus for physical or chemical analysis (for example, polarity meters, refractory meters, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity, porosity, expansion 9018 instruments and appliances used in medical, surgical dental or veterinary sciences . 14. On going through the product catalogue and considering the arguments, we hold that instrument I Stat System along with cartridges, etc are prima facie used for anylysis of various parameters of blood, and is prima facie a blood analyser. Both in case of glucometer or in the case of the present I Stat System with cartridge, blood is drawn and a few drops of blood are put on the cartridges or test strip and thereafter, on being attached to the I Stat System/Analyser, gives the readings. The only difference is that the item under consideration is more sophisticated than the glucosemeter. The testing of blood by analyzing and indicating the various ..... X X X X Extracts X X X X X X X X Extracts X X X X
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