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TMI Blog2023 (9) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... ONER OF CUSTOMS (IMPORT) , NHAVA SHEVA [ 2015 (1) TMI 839 - CESTAT MUMBAI ] the Tribunal doubted the classification decided in the case of M/s.Jindal Photos Ltd. [ 2014 (2) TMI 540 - CESTAT MUMBAI ] under 90189099 and held that the IP plates and Cassettes are rightly classifiable under CTH 370110. However, it was held that these are accessories. The Tribunal categorically observed that it is not a part. It was also observed that the benefit of notification 21/2002 would be available even if the goods fall under CTH 370110, as the Sl.No.357B of the notification covers all goods falling under Chapter 90 or any other chapter - The assessee being aggrieved by the redetermination of classification under 3701 filed appeal before the Hon ble Apex Court. As per the judgement reported in FUJIFILM INDIA PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS (IMPORT) NHAVA SHEVA [ 2017 (4) TMI 635 - SUPREME COURT ] it was held that as there was already a decision of co-ordinate bench in the case of M/s.Jindal Photo Ltd. [ 2014 (2) TMI 540 - CESTAT MUMBAI ] the Tribunal ought not to have deviated. In case of doubt should have sought for Larger Bench. It was observed that as the dispute before the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .20/2006 dt. 01.03.2006 as amended. Thus the effective rate of duty as claimed by the importer (appellant) works out to be 5% (BCD) + 3% Customs Cess+ 0% CVD + 0% C.E. Cess + % SAD. The importer cleared the goods on payment of duty as self assessed above. Subsequently, it was noticed by the department that the goods being X-ray plates are actually classifiable under CTH 37011010 and are not accessories to Digitizer as claimed by the importer. It thus appeared that the goods are liable to be classified under CTH 37011010 applicable would be @ 10+10+3+3+4%. The misclassification and availment of concessional rate of duty vide various notifications claimed by the importer resulted in short payment of duty. Show cause notices / memos were issued to the appellant proposing to re-determine the classification and to demand differential duty along with interest. After due process of law, the original authority re-determined the classification of goods under CTH 37011010 and confirmed the differential duty along with interest. Against such orders, the appellant preferred appeals before Commissioner (Appeals) who upheld the same. Hence these appeals. 3. Learned counsel Sri Anish Kumar app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus, X-ray tubes and other X-ray generators, high tension generators, control panels and desks, screens, examination or treatment tables, chairs and the like - Apparatus based on the use of X-rays of alpha, beta or gamma radiations, whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus 9022 12 00 -- Computed tomography apparatus u 7.5% - 9022 13 00 -- Other, for dental uses u 7.5% - 9022 14 -- Other, for medical, surgical or veterinary uses: u 7.5% - 9022 14 10 --- X-ray generators and apparatus (non-portable) u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) (5) 3701 Photographic plates and film in the flat, sensitized, unexposed, or any material other than paper, paperboard or textiles; instant print-film in the flat, sensitized, unexposed, whether or not in packs 3701 10 - For X-ray: 3701 10 10 ---Medical m 2 10% - 3701 10 90 --- Other m 2 10% - 4. The relevant Notification No.21/2002-Cus. is noticed as under : Exemption and effective rates of basic and additional duty for specified goods falling under chapters 1 to 98 In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 17/2001-Customs, dated the 1st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 5. It is explained by the learned counsel that the at Sl.No. 357B, goods falling under Chapter 90 or any other chapter is eligible for the benefit of the notification if the goods are accessories of the goods at Sl. No.375A. In the notification at Sl. No.357A speaks about the goods falling under Chapter heading 9086, 9090, 9020, 9021 or 9022. The description of the goods given in column 3 of the table against this is goods required for medical, surgical, dental or veterinary use. In the present case, the appellant has imported goods which are for medical purposes in the nature of X-ray imaging. These goods are used as accessories to the ADC solo digitizer and therefore merit classification under Chapter heading 90229090 of Customs Tariff Act, 1975. The authorities below have confirmed the classification under CTH 3701 alleging that its function is to capture image which is akin to photographic plate falling under CTH 3701 of Customs Tariff Act, 1975. The appellant had clearly stated that the plate inside the cassette is not a photographic plate. In spite of this, the authorities below have chosen to incorrectly treat the goods as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds required for medical, surgical equipment falling under Chapter 90. Against this, an appeal was filed by the importer before the Tribunal wherein the Tribunal held that the classification rendered by the original authority that the goods fall under 90229090 was erroneous and held that the goods would rightly be classifiable under 3701. However, the Tribunal held that the Imaging Plates and Cassettes would come under the category of accessories to a machine and the benefit of Notification No.21/2002 would be available to the appellant. Against this order as the classification of the goods was disturbed, the appellant approached the Hon ble Supreme Court. As per judgment reported in 2017 (349) ELT 203 (SC), the Hon ble Apex Court observed that there was no dispute before the Tribunal with regard to classification and the dispute was only with regard to benefit of notification as to whether the goods are accessories or not. The Tribunal ought not to have disturbed the classification. It was also held that if the Tribunal doubted the decision of the co-ordinate bench rendered in Jindal Photo Ltd. (supra) with regard to classification ought to have referred the issue to a Larger Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate is phosphor based and the image is formed on it, indicates that there is some sort of chemical action involved in formation of image. Further, the foreign supplier themselves had indicated in the heading of impugned goods as CTH 3701 and therefore the goods are rightly classifiable under CTH 3701 and not under 9022 as adopted by the appellant. Ld. A.R prayed that the appeal may be dismissed. 11. Heard both sides. 12. The issue is with respect to the classification of the imported goods in the nature of Imaging Plates and Imaging Cassettes. Undisputedly, these goods are used in the X-Ray Digitizer. The department is of the view that the goods fall under CTH 37011010 whereas the appellant (importer) has adopted the classification under CTH 90229090. The catalogue produced by the appellant describes the nature of the goods. The goods are CR MD4.0 General Plate which is an imaging plate for computed radiography with increased sensitivity and sharpness at low dose, ensuring improved image quality for dedicated applications. It is said to have superior image quality, exceptionally long life span, extremely wide dynamic range, eliminating retakes. The department is of the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bles, chairs and the like. .. .. 6.3 We find that Imaging plates I.P. Cassettes. Imaging place (IP is used instead of film to record X-ray images). The IP contains photostimulable phosphors that store X-ray energy. Scanning, the IP releases the energy, producing electronic signals, which are converted to digital values. Barium fluorohalide (BafX) phosphors in a high density layer deliver the sensitivity, sharpness and low noise in computed radiographic diagnosis the I.P. is inserted in a cassette for X-ray exposure. In these circumstances, we find that the items are rightly classifiable under 90189099 and eligible for the benefit of Notification as applicable. (emphasis supplied) 14. Later, in the case of Fujifilm India Pvt. Ltd. Vs CC (Import), Nhava Sheva (supra) the assessee/importer classified the Imaging Plates and Cassettes for medical use under CTH 90229090 and claimed benefit of notification under Sl.No. 357B of Notification No.21/2002-Cus. dt.1.3.2002. The department was of the view that these are integral part of X-ray machine and are required for getting a readable image. Though the classification adopted by the assessee was accepted, the benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal was only with regard to the eligibility of notification, the Tribunal ought not to have disturbed the classification. After remand, in the second round of litigation, the Tribunal held that Imaging Plates and IP cassettes for medical use are accessories and therefore eligible for the benefit of Notification No.21/2002-Cus. Relevant para reads as under : 2. On the above background, appellant pleaded that once the classification claimed by appellant remain undisputed as reported in the case of Jindal Photo Ltd. 2014 (300) ELT 568 (Tri.), decision of Tribunal in para 5 of the its order dated 29.10.2014 holding that above two goods falling under 357B (ii) of the Notification No.21/2002-Cus. dated 1.3.2002 are eligible to the necessary benefit of notification, appellant succeeds. 3. To the above contention of the appellant, Revenue says that classification dispute is still open and that may be agitated. But, it is noticeable that Revenue is not in appeal against the classification from the beginning. Therefore, stand of Revenue does not survive. 4. We cold have examined above argument of Revenue had that been open with clear proposition in the show-cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X
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