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TMI Blog1993 (7) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioners moved this writ application on 13th May, 1993 upon notice to the respondents. In the writ petition the petitioners have challenged the refusal of the respondent authorities to exempt Foley Balloon Catheters from payment of additional duty. By an interim order I had directed the Assistant Collector of Customs to hear and dispose of the representation of the petitioners by which the petitioners had claimed relief from payment of additional duty. Consequent directions regarding the hearing were also given. Pursuant to the directions of this Court the Assistant Collector of Customs passed an order holding that the petitioner was liable to pay additional duty. 4. The question is a pure question of law and strictly speaking there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal (referred to as CEGAT) in the case of P.R. Parekh v. Collector of Customs [1987 (30) E.L.T. 493] after considering the view of the Director General of Health Services, the opinion of experts in the field of urology, as well as the Medical Dictionary, came to the conclusion that foley balloon catheters were suction catheters within the meaning of Item 32 of the list of life saving equipment in Notification 208-Cus. dated 22-9-1981 and as such were wholly exempt from payment of basic as well as additional customs duty. 8. This view was followed in a number of decisions of the Tribunal [See : Collector of Customs v. P.R. Parekh : 1987 (27) E.L.T. 706; Vishal Surgical Equipment Co. v. Collector of Customs : 1991 (55) E.L.T. 393] as we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be so liable shall be calculated at that percentage of the value of the imported article. Explanation. - In this section, the expression "the excise duty for the time being leviable on a like article if produced or manufactured in India" means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India, or, if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs, and where such duty is leviable at different rates, the highest duty. (2) For the purpose of calculating under this section, the additional duty on any imported article, where such duty is leviable at any percent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Government shall have regard to the average quantum of the excise duty payable on the raw materials, components or ingredients used in the production or manufacture of such like-article. (5) The duty chargeable under this section shall be in addition to any other duty imposed under this Act or under any other law for the time being in force. (6) The provisions of the Customs Act, 1962 (52 of 1962), and the rules and regulations made thereunder, including those relating to drawbacks, refunds and exemption from duties, shall, so far as may be, apply to the duty chargeable under this section as they apply in relation to the duties leviable under that Act." 13. This section clearly envisages that the quantum of additional duty is relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be construed differently from the items used in the Customs notification. The conclusion of the Tribunal that Foley Balloon Catheters are Suction Catheters was a finding of fact. That the decision was rendered in the context of a Customs Notification was immaterial. The opinion of the Experts as well as medical dictionaries were taken into consideration before the Tribunal reached the conclusion. Had it not been for the Explanation inserted in Notification 208-Cus. there can be no doubt that Foley Balloon Catheters would have continued to be exempted from duty under that notification. The Explanation was necessary to exclude what would otherwise have been covered. 17. A sister concern of the petitioner No. 1 had also imported Foley ..... X X X X Extracts X X X X X X X X Extracts X X X X
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