9911796707
TMI Blog2023 (9) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... 9090 and claimed benefit of concessional rate of Basic Customs Duty at 5% vide sl.No.357B (2) of the Customs Notification No.21/2002 dated 01.03.2022, Nil rate of CVD vide Sl.No.59 (ii) of Central Excise Notification No.6/2006-CE, and full exemption from SAD at Sl.No.72 of Customs Notification No.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 origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atus 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, 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 7.5% - 9022 14 20 ---Portable X-ray machine u 7.5% - 9022 14 90 ---Other u 7.5% - 9022 19 00 --For other uses -Apparatus based on the use of alpha, beta or gamma r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Table, when imported into India,- (a) from so much of the duty of customs leviable thereon under the said First Schedule as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table; (b) from so much of the additional duty leviable thereon under sub-section (1) of section 3 of the said Customs Tariff Act, as is in excess of the rate specified in the corresponding entry in column (5) of the said Table, subject to any of the conditions, specified in the Annexure to this notification, the condition No. of which is mentioned in the corresponding entry in column (6) of the said Table: TABLE S.No. Chapter or Heading No. or sub-heading No. Description of goods Standard rate Additional duty rate Condition No. (1) (2) (3) (4) (5) (6) ... ... ... ... .... ... 357A 9018, 9010, 9020, 9021 or 9022 Goods required for medical, surgical, dental or veterinary use Explanation - For the purposes of this exemption, the term "Goods" refers to medical instruments/ appliances required for medical, surgical, dental or veterinary use only and does not refer to Parts and spares thereof. 2.5% - - 357B 90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent from an ordinary X-ray plate. The authorities below have failed to note that no visible images are made on the imported goods. The imported goods are capable of repeated use whereas the usual X-ray plate when exposed once, cannot be used repeatedly. 6. Ld. Counsel submitted that in the appellant's own case when the Digitalized X-Ray Equipment (ADC) was imported, the department sought to classify it under CTH 9022. The present dispute is with regard to the imaging plates and accessories which are used in the ADC for display of the X-Ray taken. This issue of classification of imaging plates and cassettes have already been decided by the Tribunal in the case of Jindal Photo Ltd. Vs CC (Imports) Nhava Sheva - 2014 (300) ELT 568 (Tri.-Mumbai) it was held that the items are rightly classifiable under 90189099 and are eligible for the benefit of notification No.21/2022 dt. 01.03.2022. 7. The said decision was doubted and deviated by the Tribunal in the case of Fujifilm India Pvt. Ltd. Vs CC (Import), Nhava Sheva - 2015 (316) ELT 270 (Tri.-Mumbai). In Fujifilm, the facts of the case are that the original authority classified the goods under 90229090 but however denied the benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant to put forth the argument that the imported goods are not ordinary X-Ray plate to be classified under 3701. Ld. Counsel prayed that the appeal may be allowed. 9. Ld. A.R Sri R. Rajaraman appeared for the Department and supported the findings in the impugned orders. The description of the goods described in OIO No.322/2011 dated 01.07.2011 at para 9 reads as under : "The CR MD cassette is a user friendly and durable CR cassette containing a photostimulable phosphor imaging plate and featuring a memory chip for storing the data entered at the ID terminal. The exposure equipment and routines do not have to be modified when switching from conventional to digital imaging. The cassettes are in this case loaded with the corresponding imaging plates and pre-initialized in the factory" 10. It is submitted by the learned A.R that from the description of goods in the catalogue of the manufacturer it is clear that the cassette contains a photostimulable phosphor imaging plate. This plate is used to capture / form the image of the part of the patient's body which is required to be captured. This function of the plate is akin to the function of the photographic plate falling under CTH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 229090. Relevant para of the Tribunal order reads as under : "6. We have carefully considered the submissions and perused the records. The only dispute in this case is classification and benefit of the Notification with regard to the following 3 items : (i) Dry pix 7000, (ii) FCR Capsula, and (iii) I.P. Cassette & Imaging Plate. The appellants claimed the classification of Dry Pix 7000, FCR Capsula and IP Cassette & Imaging Plate under CTH 90189099. The Lower Adjudicating Authority classified Image Plates, IP Cassettes and Capsula under CTH 90229090 and classified Drypix under CTH 84433990 and denied the benefit claimed. For better appreciation Chapter Tariff Headings 9018 & 9022 are reproduced hereunder :- 9018 : Instruments and appliances used in medical, surgical, dental or veterninary sciences, including scientigraphic apparatus, other electromedical apparatus and sight-testing instruments. 9022 : Apparatus based on the use of X-ray or of Alpha, Beta or gamma radiations, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r film cannot be said to be a part of a camera or an X-ray machine. A camera or an X-ray machine is complete even without a film. Therefore, a film or an imaging plate would come under the category of accessories to a machine. Since the coverage under 357B includes all products falling under Chapter 90 or any other chapter, goods falling under CTH 3701 would also be eligible for the benefit of concessional rate of 5% ad valorem under the aforesaid notification. Thus, IP and IP cassette, which is only a protective cover for the imaging plates would be eligible for the exemption. As regards the FCR Capsula it has already held by this Tribunal that the same falls under CTH 90229090/90221490 and will not be eligible for the exemption under the aforesaid notification." 15. 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 Fijifilm India Pvt. Ltd. Vs CC (Import), Nhava Seva - 2017 (349) ELT 203 (SC) it was held that as there was already a decision of co-ordinate bench in the case of M/s.Jindal Photo Ltd. (supra) the Tribunal ought not to have deviated. In case of doubt should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner (Appeals) vide order impugned herein upheld the classification, but however held that the goods are consumables and therefore not eligible for the benefit of notification. 17. From the above it can be seen that in the case of Fujifilms Pvt. Ltd. the classification of the goods has been settled to be under 90229090. So also, the department in the OIO dt. 23.09.2011 has held the goods to be classifiable under 90229090 against which no appeal has been filed by the department. We therefore hold that the classification adopted by the appellant under CTH 90229090 is to be sustained. The re-determination of classification under CTH 370110 is set aside. 18. The next question to be answered is whether the goods are eligible for exemption under notification 21/2002. The Ld. Counsel for appellant has submitted that these are accessories to the main machine and therefore eligible for exemption. The Commissioner (Appeals) vide order dt. 24.06.2014 has held that these are consumables and therefore not eligible for the exemption. The meaning of the word 'consumables' as per Advanced Law Lexicon is 'a thing (such as food) that cannot be used without changing or extinguishing its' sub ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
