2009(05)LCX0180
In the Customs, Excise & Service Tax Appellate Tribunal, Chennai
Ms. Jyoti Balasundaram, Vice President and Shri P. Karthikeyan, Member (Technical)
TTK Healthcare Ltd.
Versus
Commissioner Of Customs (Air), Chennai
And
Vice-Versa
Final Order Nos. 581-582/2009 dt. 19.5.2009 certified on 29.5.2009 in Appeal Nos. C/477 & 479/2004
Cases Quoted -
Exide Industries Ltd. vs. CC, Chennai 2007(02)LCX0212 Eq 2007 (080) RLT 0673 (CESTAT-Che,)-Distinguished [Para 3]
Amararaja Batteries Ltd. vs. CC, Chennai 2008 (087) RLT 301 [CESTAT-Che.)-Distinguished [Para 3]
Advocated By -
Shri P.C. Anand, Consultant for Party
Shri V.V. Hariharan, JCDR for Department
Per Jyoti Balasundaram :
Vide the impugned order, "Polypropylene mesh" imported by M/s. TTK Healthcare Ltd. in running length (roll form) has been classified under CTH 58039090 which covers "Gauze other than narrow fabrics of heading 58.06" as the goods are akin to gauze, and held to attract merit rate of duty of 20% + 16% ad valorem, rejecting the claim of the importers for classification under CTH 90219090 (CTH 9021 covers "orthopaedic appliances hearing aids and other appliances which are worn or carried, or implanted in the body to compensate for a defect or disability") but extending the benefit of concessional rate of duty und-r item No.119 vide list 8 (Sl.No.94C) of the Table annexed to the Notification No.21/02-Cus. dt. 1.3.02 as amended. The importer is in appeal against he classification of the goods, while the Revenue has filed an appeal against extension of benefit of the notification.
2. We have heard both sides. The goods are in running length and after import, the following processes are carried out :-
1) Cutting to required sizes
2) Cleaning
3) Packing and
4) Sterilizing
The importer has stated that the imported item after carrying out above processes is sold as "versatile prosthesis for surgical reconstruction of thoracic and abdominal wall defects". We do not find merit in the submission of the importers that the item, as imported, is an appliance to be implanted in the body to compensate for a defect for the reason that the imported goods are in running length and it is only after the processes set out above are undertaken, the goods become "Propylene mesh for hernia repair". Although the literature produced by the importers shows that the item is a 'versatile prosthesis for surgical reconstruction of thoracic and abdominal wall defects', we find that it becomes a 'versatile prosthesis' only after the processes are carried out after import. We, therefore, hold that the goods are not covered by description under CTH 9021. The heading adopted by the authorities below namely CTH 58039090 is more appropriate as the goods are more akin to gauze covered under the above heading. The importers plead before us that, alternately, the goods can be considered as falling for classification under CTH 39269099 which covers "other articles of plastics not elsewhere specified or included". This claim also does not merit acceptance for the reason that the appraiser initially opined that the goods were classifiable under this heading, which was rejected by the Deputy Commissioner, and the importers vehemently contended that just because the material of construction is propylene, it should not be classified under the category of plastic articles under CTH 39269099 and when the adjudicating authority adopted classification under CTH 58039090, the importers did not canvass alternate classification under CTH 39.26 before the Commissioner (Appeals) or in the appeal before the Tribunal. Further, the item being in running length can also not be considered as an article of plastic so as to be covered under description of the goods under CTH 39269099. We therefore reject the appeal of the importers.
3. As regards the Revenue's appeal, we accept the same for the reason that the benefit of notification depends not only on the description of the goods occurring in Sl.No.119 but the benefit also depends upon the classification thereof under either Customs Tariff Headings 29, 30, 34, 37, 38, 39, 69, 84, 85, 90 or 94 (Chapter 54 (58) is not specified in Column No.2 of the Table to the Notification). The case law relied upon by Ld. counsel for the importers namely the decision of the Tribunal in Exide Industries Ltd. Vs CC, Chennai,2007(02)LCX0212 Eq 2007 (080) RLT 0673 (CESTAT-Che.)=2007(02)LCX0212 Eq 2007 (212) ELT 0496 (Tri.-Chennai), followed in Amararaja Batteries Ltd. Vs CC, Chennai, 2008 (087) RLT 0301 (CESTAT-Che.)=2008(05)LCX0067 Eq 2008 (228) ELT 0117 (Tri.-Chennai) is distinguishable - in the case of Exide Industries Ltd. reliance was placed by the Tribunal on HSN Notes to hold that battery separators in roll form ready for use are not excluded from Customs Tariff heading 85.07. In the present case, however, we have already that the imported item cannot be considered to be an appliance to be implanted in the body, in the form in which it is presented for clearance by Customs.
4. In the result, Appeal No.C/477/04 is dismissed while Appeal No.C/ 479/04 is allowed.
Dictated and pronounced in open Court.
Equivalent 2009 (094) RLT 0838 (CESTAT-Che.)
Equivalent 2009 (243) ELT 0075 (Tri. - Chennai)