Nirmal Mfg. & Marketing Co. vs Commr. Of Cus., New Delhi>1999(10)LCX0229

1999(10)LCX0229

IN THE CEGAT, COURT NO. IV, NEW DELHI

S/Shri G.R. Sharma, Member (T) and A.C.C. Unni, Member (J)

NIRMAL MFG. & MARKETING CO.

Versus

COMMR. OF CUS., NEW DELHI

Final Order No. 896/99-D, dated 14-10-1999 in Appeal No. C/265/99-D

CASE CITED

Prosoya Industries Ltd. v. Collector — 1995(02)LCX0127 Eq 1995 (078) ELT 0344 (Tribunal) — Referred [Paras 3, 5]

Advocated By : Shri R. Krishnan, Advocate, for the Appellant.

None, for the Respondents.

[Order per : G.R. Sharma, Member (T)]. - This is an appeal against the order of the Commissioner (A) who held that “C.T.H. 9021 covers orthopaedic appliances, including crutches, surgical bells and trusses, splints and other fracture appliances, artificial parts of body, hearing aids other appliances to compensate for a defect or disability. Item under import does not fit in any of the description of main heading. Item under import basically being heat retainer is ruled out of C.T.H. 9021. Similarly C.T.H. 9506 covers protective equipment, which are pre-injury protective equipment and not post injury pain relievers. Item under import are post injury pain relievers, therefore, cannot be classified under Heading 9506. C.T.H. 6307 covers other made up articles of textile, including dress patterns. For classification under C.T.H. 6307 presence of rubber threads is not precondition. However, presence of non-porous rubber layer in between outer layer and inner layer of fabric serves same elastic purpose. Support articles for knees, ankles, elbows or wrists are classifiable under Heading 6307.90. Thermo skin under import are basically support articles also retaining heat for fast rehabilitation of injured persons. Therefore, it is rightly classifiable under Heading 6307.90.” Being aggrieved by this order, the appellants have filed the captioned appeal.

2. The facts of the case in brief are that the appellants filed a bill of entry for clearance declaring the goods as support bandage of various types and claimed classification thereof under Heading 9021. The department alleged that the goods were classifiable under Heading 6307 and issued a SCN to the appellants asking them to explain as to why the goods should not be classified under sub-heading 6307.90 and duty demanded accordingly. In reply to the SCN, the appellants submitted that the goods were Rehabilitation Aids which are used to help the injured/sports person, disabled person and arthiritic patients to rehabilitate faster and claimed them to be orthopaedic appliances and, therefore submitted that they were classified under sub-heading 9021.90. The department after considering the submissions held that they were supporting appliances for other supports articles of textile materials and were appropriately classifiable under sub-heading 6307.90. On appeal, the Commissioner (A) held as indicated above.

3. Arguing the appeal, Shri R. Krishnan, ld. Advocate submits that the product imported by the appellants answers to the description under Heading 90.21 as orthopaedic appliances. He submits that in the technical literature the goods were thermoskin physiological heat retainers offer slip on heat therapy for injury and pain with perspiration control for long term comfort; that the product was used in case of injury caused through impact, overload or repetitive strain can result in pain, tissue inflammation and stiffness. Ld. Counsel submits that the product is thermoskin; that it is a new generation Heat Retainer developed for simple and effective treatment of pain and injury to muscles, tendons and ligaments; that it combines support and naturally generated body heat for therapy and pain relief. He submits that the application of prolonged heat to the affected area is a simple and rapid form of treatment; that heat promotes healing by opening up the small blood vessels, increasing blood flow and facilitating the removal of inflammation; that the heat works to assist your body’s natural healing process. He submits that their product was not excluded from Chapter 90 under Chapter note 1(b); that the Chapter note 1(b) reads “Supporting belts or other support articles of textile material, whose intended effect on the organ to be supported or held derives solely from their elasticity (for example, maternity belts, thoracic support bandages, abdominal support bandages, supports for joints or muscles).” He submits that the product is not solely supporting belt. He submits that the main function of the item imported is to generate heat in the organ where it is fitted. No doubt the product is partly elastic and is not solely supporting belt. He, therefore submits that Chapter note 1(b) is not applicable to their product. He refers to the judgment of this Tribunal in the case of Prosoya Industries Limited [1995 (078) ELT 344] and submits that the term ‘appliances’ has been defined in this case and is applicable to the facts of this case. He also refers to the Revenue Canada, Customs and Excise National Customs Ruling dated August 4, 1993 whereunder the Physiotherm (sic) Heat Retainers are classifiable under Heading 9021.19.80.00. He submits that this is corresponding to Customs Tariff Heading 90.21 and Chapter sub-heading 9021.90. He submits that since HSN is based on international understanding of a product and, therefore this ruling has persuasive value and he submits that in view of the above, their product was classifiable under sub-heading 9021.90.

4. Countering the arguments, ld. DR submits that the product is used as supporting belt and is an article of textile. He submits that the supporting belts are excluded from Chapter 90. He also submits that it is not an orthopaedic appliances because reading the entry down does not include the type of article before us. He submits that the Commissioner (00A) has given detailed reasoning as to why the product does not merit classification under sub-heading 9021.90. He reiterates the findings of the authorities below.

5. Heard the rival submissions. On careful consideration of the submissions, we find that the appellants have produced literature which clearly shows that the item imported is for relieving pain after generating heat. Since the item is for heating, therefore the main function is not to support but is heat generation. Thus, the item is not covered by exclusion clause 1(b) under Chapter 90. We note that in the impugned order, the Commissioner also discussed Chapter Heading 9506, however this heading is not before us. We also note that Canadian Customs & Excise Department in their National Customs Ruling clearly held that the item Physiothermo Heat Retainer will be classifiable under Heading 90.21. We have also perused the case law in the case of Prosoya Industries Limited relied upon by the appellants on the definition of the Term ‘appliances’.

6. In view of the fact that the product is not excluded from classification under Chapter note 1(b) of Chapter 90, having regard to the fact that the appliance is an apparatus, device or instrument and also having regard to the fact that the Canadian Customs Ruling classifies the product under Chapter Heading 90.21, we hold that the imported product described by the appellants as rehabilitation aid will be classified under Heading 9021.90. In this view of the matter, the appeal is allowed. Consequential relief, if any, shall be admissible to the appellants in accordance with law.

Equivalent 2000 (117) ELT 825 (Tribunal)

Equivalent 2000 (036) RLT 0521 (CEGAT)