9911796707
TMI Blog2024 (12) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... re and supply medical oxygen to patients during transportation, it is to be considered as a life supporting medical equipment. In the present case, it is not in dispute that the goods imported are to be fitted in 108 / 102 Ambulance services, under the Janani Shishu Suraksha Karyakram (JSSK) Scheme, for 24*7 free transportation of expecting mothers and sick infants (up to one year from birth) through toll-free centralized call centres. The impugned goods imported by the Appellant are more appropriately classifiable under CTH 90189099, as claimed by them for the Bill of Entry No. 7836092 dated 15.12.2016 - the differential duty confirmed in the impugned order is set aside on account of re-classification of the impugned goods. Contravention of provisions of GCR, 2004 and GCR, 2016 - HELD THAT:- Section 2 (xxi) of the GCR, 2004 defines Gas Cylinder or Cylinder - the definition specifically excludes cylinders fitted in special carriage vehicles such as ambulances. Thus, the medical oxygen cylinders to be fitted in ambulances are excluded from the purview of GCR, 2004/GCR, 2016 or the jurisdiction of the Explosives Act, 1884 or licensing by the Chief Controller of Explosives. Accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . GVK Emergency Management Research Institute (hereinafter referred to as the Appellant ) filed a home consumption Bill of Entry No. 7836092 dated 15.12.2016 for import of 3,100 numbers of empty cylinders along with valve and 500 numbers of cylinder accessories from China. The details of the goods imported are as follows: - Sl. Description CTH declared Qty. (pcs.) Unit price (USD) Total value (USD) CTH By Dept. 1 2.5 kgs. Empty Cylinder (semi welded steel) with valve and accessories 90189099 2000 11.5 23000 73110030 2 10.2 Ltr. Empty Cylinder (semi welded steel) with valve and accessories 90189099 500 69 34500 73110030 3 3 Ltr. Empty Cylinder (Aluminium) with valve and accessories 90189099 600 69 41400 76130029 4 Medical Equipment 10.2 L cylinder and accessories 90189099 500 37 18500 73110030 The said Bill of Entry was RMS facilitated. 2.1. The above goods imported were to be used in 108 / 102 Ambulance services, under the Janani Shishu Suraksha Karyakram (JSSK) Scheme, for 24*7 free transportation of expecting mothers and sick infants (up to one year from birth) through toll-free centralized call centres. 2.2. While assessing the bill of entry, the Assessing Officer of the Kolkata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under the CTH 73110030 which reads as containers of any capacity used for transport or storage of compressed gas or liquefied gas . Thus, it is clear that this CTH covers the cylinders or other containers used for storing compressed gas or liquefied gas . In the present case, the cylinders imported are meant for storage of 'medical oxygen' to be fitted and used in ambulances. Thus, the goods imported would not fall under the CTH 73110030. 4.1. The Appellant submitted that CTH 90189099 determined by the Appellant-importer is correct because: - a. The said oxygen cylinder, is a life-saving apparatus, used in medical, surgical, dental and veterinary sciences. b. The Customs Department has been allowing the import of the said goods, in the past, without any issues. c. Even, where the Customs Department, did initially rake up an issue, the goods were subsequently cleared without any issue, as in the case of ICD Tughlakabad. d. The impugned goods, whether it is 'Semi welded steel high pressure cylinders' or 'Semi welded aluminium high pressure cylinders' both are attached with valves for supply of oxygen to patients during transportation. 4.2. The Appellant con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Shipping Services Vs. Government of India [Order of the Madras High court dated 01.01.2018 inW.P. No.33139 of 2004]: The Hon ble High Court quashed the SCN proceedings, due to a delay of more than 2years, for issuing the SCN itself. (ii) M/s. Ram Nath Co. Pvt. Ltd. Vs. Addtl. Commissioner/Deputy Commissioner of Customs (Group 2), Chennai Customs House [Order of the Madras High Court vide W.P. no. 9614 of 2022 W.M.PNo.9355 of 2022 dated 13.09.2023] Delays in issuing the SCN or in adjudication, vitiating the proceedings were also re-iterated in this order of the Madras High Court dated 13.09.2023. (iii) R. D. Dhanuka and S. M. Modak JJ [Writ Petition No. 1194 OF 2022, Writ Petition (L) No.1068 of 2021 dated 24.03.2022] 4.5. In their additional submissions, the Appellant has submitted that similar goods were imported through ICD, Tughlakabad, New Delhi wherein the goods imported were classified under CTH 90189099. 4.6. In view of the above submissions, the Appellant has prayed for classifying the goods under CTH 90189099 and release of the goods confiscated . 5. The Ld. Authorized Representative of the Revenue reiterates the findings in the impugned order. 6. Heard both sides and pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported are to be fitted in 108 / 102 Ambulance services, under the Janani Shishu Suraksha Karyakram (JSSK) Scheme, for 24*7 free transportation of expecting mothers and sick infants (up to one year from birth) through toll-free centralized call centres. 8. In view of the above, we hold that the impugned goods imported by the Appellant are more appropriately classifiable under CTH 90189099, as claimed by them for the Bill of Entry No. 7836092 dated 15.12.2016. 9. We also observe that the Appellant has imported similar goods through ICD, Tughlakabad, wherein the same goods have been cleared under CTH 90189099. For the sake of ready reference, the said Bill of Entry filed by the Appellant at ICD, Tughlakabad and cleared under the CTH 90189099, is extracted below: - [ref.: details of goods indicated under E Item Details ] 10. Thus, we observe that similar goods imported by the appellant are cleared from other ports under the CTH 90189099. Following the classification adopted at other ports, we hold that the impugned goods imported by the appellant are appropriately classifiable under CTH 90189099. 10.1. Accordingly, we set aside the differential duty confirmed in the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice issued beyond the normal period of limitation is liable to be set aside. Consequently, we hold that the Show Cause Notice issued after four years from the date of importation is legally unsustainable and accordingly, we hold that the demand confirmed in the impugned order by invoking the extended period of limitation is liable to be set aside. 12.2. Further, we observe that there is no mis-declaration or suppression with intention to evade duty established on the part of the Appellant. Accordingly, we hold that no penalty is imposable on the Appellant. 13. In view of the above discussion, we pass the following order: - (1) The impugned goods imported by the Appellant vide Bill of Entry No. 7836092 dated 15.12.2016 are rightly classifiable under CTH 90189099. The demand of differential duty confirmed in the impugned order on account of re-classification is not sustainable and thus, we set aside the same. (2) We hold that the impugned goods imported by the appellant to be fitted in ambulances are excluded from the purview of GCR, 2004/GCR, 2016 or the jurisdiction of the Explosives Act, 1884 or licensing by the Chief Controller of Explosives. Also, there is no violation of BIS c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
