2000(01)LCX0220

IN THE CEGAT, COURT NO. III, NEW DELHI

 Shri V.K. Agrawal, Member (T) and Ms. Jyoti Balasundaram, Member (J)

DR. SABHARWAL’S BULK DRUGS LTD.

Versus

COMMISSIONER OF C. EX., KANPUR

Final order No.41/2000-C, dated 12-1-2000 in Appeal No.C/A 50/99-C

CASE QUOTED

Johnson & Johnson v. Commissioner —1998(09)LCX0159 Eq 1999 (105) ELT 0177 (Tribunal) — Relied on          [Para 4]

REPRESENTED BY:       Shri Surendra Mishra, Consultant, for the Appellant.

Dr. Ravinder Babu, DR, for the Respondents.

[Order per: Jyoti Balasundaram, Member (J)]. - The correct classi-fication of product called ‘Polyester Casting Tape imported by the appellants herein arises for determination in this appeal. According to the Revenue, it merits classification under heading 3005.90 of the Schedule to the Customs Tariff Act while the importer claims classification under Customs Tariff heading 9021.19.

2. We have heard Shri Surendra Mishra, learned Consultant who submits that the product is in the nature of fracture appliances as it can serve the purpose of a splint for providing greater strength at fracture site and he refers to the HSN explanatory notes in support of his contention on classification.

3. The learned DR on the other hand, submits that classification, as confirmed by the department, is correct in view of the fact that the item in dispute is nothing but a bandage which is put up in packing for retail sale and therefore, having regard to the HSN explanatory notes, the goods merit classification under Customs Tariff heading 3005.90.

4. We have carefully considered the rival submissions. The product is used for providing immobility in case of fracture and it is a substitute in place of plaster of paris. On exposure to moisture, the tape hardens and provides firm support. It provides additional facility of ventilation which is not available in the more commonly used plaster of paris casting. It is a tape used for orthopaedic purposes and not an appliance in any sense of the term. We also find that in the case of Johnson & Johnson v. Commissioner of Central Excise reported in [1998(09)LCX0159 Eq 1999 (105) ELT 0177 (Tribunal) = 1998 (029) RLT 23], the Tribunal has held that ‘Deltalite casting tapes’, which are polyester cotton fabric coated with polyurethane resin offering controlled rigidity to provide greater strength at the site of fracture, are not devices/instruments/appliances and hence cannot be considered to fall within the coverage of heading 90.21 and the Tribunal has held that they are akin to goods covered by heading 30.05 which covers wadding, gauzes, bandages and similar articles impregnated or coated with pharmaceutical substances provided these are put up in forms of packings for retail sale for use of medical, surgical, dental or veterinary purposes. The ratio of the above decision is squarely applicable to the present case and therefore, following the ratio thereof, we hold that classification done by the Department under Customs Tariff heading 3005.90 is correct. The confiscation of goods is also upheld having regard to the fact that the appellants did not have a valid import licence which was required for import of goods falling under heading 3005. The redemption fine of Rs. 3 lakhs requires no interference. Having regard to the value of the goods (approximately Rs. 37 lakhs), the penalty of Rs.1 lakh imposed by the Adjudicating authority is reduced to Rs. 50,000/- having regard to the totality of the facts and circumstances of the case.

The appeal is partly allowed.

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Equivalent 2000 (119) ELT 634 (Tribunal)