2002(08)LCX0163

IN THE CEGAT, EASTERN BENCH, KOLKATA

Smt. Archana Wadhwa, Member (J) and Shri V.K. Agrawal, Member (T)

SUNIL POLYPLAST LTD.

Versus

COMMISSIONER OF CUSTOMS, CALCUTTA

Order No. A/823/KOL/2002, dated 1-8-2002 in Appeal No. C/R-643/2001

Advocated By :   Shri D.K. Saha, Consultant, for the Appellant.

Shri A.K. Pandit, JDR, for the Respondent.

[Order per : Archana Wadhwa, Member (J)]. - As per facts on record, the appellants filed a bill of entry for clearance of 4 pkgs. of cannulae and claimed exemption under Serial Number 271, list 21, item number 34 of the Notification No. 20/99-Cus., dated 28-2-1999.

2. The goods were examined by the Appraiser of the Customs who opined that the same were bare hypodermic needles. As such, the same were assessed to duty under heading 9018.32.

3. Being aggrieved with the above assumption, the appellants approached the authorities for issuance of appealable order. In remand proceedings, the Assistant Commissioner of Customs held against the appellants by holding that the goods imported by them were not cannulae but bare needles. Appeal against the above order also did not succeed before the Commissioner (Appeals).

4. The appellants’ contention is that they are engaged in the manufacture of hypodermic needles for which purposes they are regularly importing disposable cannulae. No objection was ever raised by the Customs authorities prior to the present importation. Shri D.K. Saha, ld. Consultant, submits that they had entered into a memo of understanding with their foreign supplier for purchase of bulk cannulae and the present consignment of cannulae was sent as a part of the agreement. He submits that the authorities below have held against them based upon the visual examination of the goods by the Customs Appraiser which cannot be equated with ‘expert opinion’. He submits that it is only when cannulae is mounted on a plastic hub, then it becomes needle which is then sterilised, packed in blister packs with protective caps. The invoice raised by the foreign supplier as also the inspection certificate given by him showed that the goods are nothing but cannulae. The manufacturer of the said goods had also issued a certificate of inspection dated 20-3-1999 certifying that the goods are as per ISO : 7864, which is equivalent to IS : 10654. From the drawing at page 4 of IS : 10654, it will be seen that that Hypodermic Needle consists of needle, tube, hub and sheath. Since there is no finding that the impugned goods are complete with needle, tube, hub and sheath, it cannot be said that the subject goods are hypodermic needle. On the contrary, the examination report by the Customs mentioned the needles as bare. He submits that needle can never be bare and it is only the cannulae which is manufactured in that State. When the goods have been imported in pursuant to MOU with the foreign supplier, there can be no question of importing hypodermic needles. He submits that in fact the lower authorities have accepted that the goods as per the invoice is cannulae and from the stock samples produced, cannulae was also identified. However, they have rejected the appellants’ claim by observing that as the goods have already been released and the sample of import is not available, the actual identity of the imported goods cannot be ascertained at this juncture. He submits that the above reasoning is not correct inasmuch as all the documentary evidences produced by them point to only one fact that it was cannulae which was imported by them and not the needles.

5. We have also heard Shri A.K. Pandit, ld. JDR who supports the impugned order and submits that it was on physical examination of the goods that the same were found to be bare needle. Inasmuch as at the time of adjudication, the goods were not available, the adjudicating authorities have rightly rejected the appellants’ claim.

6. We have carefully considered the submissions made from both sides. There is no dispute about the fact that the goods have been described in the supplier’s invoice as cannulae. The said importation has been made by the appellants in pursuance to a memo of understanding entered into by the appellants with the foreign supplier, which is for the supply of cannulae only. The certificate of inspection given by the foreign supplier also described the goods as disposable cannulae. We further find that the goods have been described as disposable cannulae even in the insurance documents as also in the certificate of origin. As against the above documents produced by the appellants to support their claim that the goods are nothing but cannulae, the Revenue is relying upon the visual examination of the goods. The goods in question are of hypodermic nature and the personal views of the Customs Appraiser, cannot be made the sole basis for holding that the goods are not cannulae but bare needles. It has also been demonstrated before us by the appellants that needles can never be bare and the same need a plastic tube, hub and sheath to be converted into needles. We fully agree with the above contention of the appellants that the Customs Appraiser’s personal views cannot be equated with an expert opinion. No samples have been drawn by the Revenue and sent to expert for identification of the goods. In the circumstances, we are in agreement with the appellants that the documentary evidences produced by them established that the goods were in fact cannulae and nothing else. Accordingly, we set aside the impugned order and allow the appeal with consequential relief to the appellants.

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Equivalent 2002 (146) ELT 0435 (Tri. - Kolkata)