Jindal Photo Ltd. Versus Commissioner of Customs (Import), Nhava Sheva>2013(02)LCX0184

2013(02)LCX0184

IN THE CESTAT, WEST ZONAL BENCH, MUMBAI [COURT NO. II]

S/Shri Ashok Jindal, Member (J) and S.K. Gaule, Member (T)

Jindal Photo Ltd.

Versus

Commissioner of Customs (Import), Nhava Sheva

Final Order No. A/1237/2013-WZB/C-I(CSTB), dated 20-2-2013 in Appeal No. C/415/2012-Mum

Cases Quoted -

Master Medical Equipment v. Collector - 1995 (80) E.L T. 101 (Tribunal) - Referred [Para 4.3]

Advocated By -

Shri Jhamman Singh, Advocate, for the Appellant.
Shri V.C. Khule, Dy. Commissioner (AR),for the Respondent.

[Order per: S.K. Gaule, Member (T)]. -

1. Heard both sides.

2. The appellants filed this appeal against the order dated 28-3-2012 passed by the Commissioner of Customs (Appeals), Nhava Sheva, whereby the Id. Commissioner upheld the lower adjudicating authority's order and dismissed the appeal filed by the appellants.

3. Briefly stated facts of the case are that the appellants imported 'FCR Capsula, Dry Pix 7000 and IP Cassette & Imaging Plate' and filed Bill of Entry No. 979360, dated 29-11-2010 and Bill of Entry No. 980768, dated 30-11-2010. The appellants claimed the products Dry Pix 700, FCR Capsula and LP. Cassette - IP Cassette & Imaging Plate under CTH 90189099 and claimed exemption under Notification No. 21/2002-Cus., dated 1-3-2002 (Sr. No. 357A) and Notification No. 10/2006-C.E., dated 10-2-2006, Sr. No. 28 in respect of FCR Capsula & Dry Pix 7000. The appellant also claimed exemption Notification No. 21/2002-Cus., dated 1-3-2002 (Sr. No. 357B(ii) and exemption under Entry No. 59(i) of Notification No. 6/2006-C.E., dated 1-3-2006 for Imaging Plates, IP Cassette and CR Console. The Lower Adjudicating Authority denied the benefit of exemption under Sr. No. 357B(ii) of Notification No. 21/2002-Cus., dated 1-3-2002 to Image Plates, IP Cassettes and Capsula classifying the same under CTH 90229090 with BCD leviable @ 7.5%, classified Drypix under CTH 84433990 and ordered assessment of the Console and Drypix @ applicable to accessories. Aggrieved by the same, the appellants filed appeal before the Id. Commissioner (Appeals) who upheld the lower adjudicating authority's order and dismissed the appeal filed by the appellants. Hence the appeal before the Tribunal.

4. The contention of the appellants is that as regards classification and claiming of exemption by the appellant in case of FCR Capsula, LP. Cassettes and Imaging Plates, appellant submits that even if the goods in question are classified under Tariff Heading 9022 90 99 as against Tariff Heading 9018 90 99, the appellant will be eligible for the benefits and the change of classification will not affect the durability of the product in question. The contention is that the learned Commissioner (Appeals) has held that FCR Capsula, LP. Cassettes and Imaging Plates are parts of the diagnostic apparatus as against claim of the appellant that FCR Capsula is independent equipment/apparatus and that Imaging Plates and LP. Cassettes are accessories to the X-Ray Machine.

4.1 The contention is that the item 'Capsula X' imported by appellant has been claimed under CTH 90189099 and not under 9002 as per order of adjudicating authority, whereas as per Order, the authority have not properly classified the items under any specific heading. Further they never claimed the item under 9022, (which is wrongly mentioned in the Order). Their claim was always under 90189099, which is correct heading for classification of FCR Capsula X. It is all the more surprising that on the one hand while Assistant Commissioner in his discussion rejected classification under CTH 9022, but he finally classified the item of Capsula X under CTLI in 90229090 in the "Order" portion.

4.2 The contention is that Drypix 7000 is an instrument /appliance which is exclusively meant for medical use. This machine prints the image of X-ray obtained on imaging Plate and cannot be used for printing on paper or otherwise for general purposes. The printing can only be obtained on medical films. This can only be used with medical equipments such as CR, CT, MRI, Ultrasound for medical purpose only.

4.3 The contention is that LP. Cassettes and Imaging plates are correctly classifiable under CTH 90189099 and are entitled for the exemption Notification No. 21/2002 as accessories and not parts as held by the department. In support of their contention they placed reliance on the decision in the case of Master Medical Equipment v. CCE, Neiv Delhi - 1995(05)LCX0082 Eq 1995 (080) ELT 0101 (Tribunal).

5. The Id. Dy. Commr. (AR) reiterated the findings of both the lower authorities.

6. We have carefully considered the submissions and perused the records. The only dispute in this case is classification and benefit of the Notification with regard to the following 3 items:
(i) Dry pix 7000,
(ii) FCR Capsula, and
(iii) LP. Cassette & Imaging Plate.
The appellants claimed the classification of Dry Pix 7000, FCR Capsula and IP Cassette & Imaging Plate under CTH 90189099. The Lower Adjudicating Authority classified Image Plates, IP Cassettes and Capsula under CTH 90229090 and classified Drypix under CTH 84433990 and denied the benefit claimed. For better appreciation Chapter Tariff Headings 9018 & 9022 are reproduced hereunder :-
9018 : Instruments and appliances used in medical, surgical, dental or veterninary sciences, including scientigraphic apparatus, other electromedical apparatus and sight-testing instruments.
9022 : Apparatus based on the use of X-ray or of Alpha, Beta or gamma radiations, whether or not for medical, surgical dental or veterinary uses, including radiography or radiotherapy apparatus. X-ray tubes and other X-ray generators, High Tension generators, control panels and desks, screens, control panels and desks, screens, examination or treatment tables, chairs and the like.

6.1 We find that the FCR Capsula X process the X-Ray image already captured on the imaging plate housed in casettee. In this machine processing starts only after the image is captured. This instrument is not based on X-Rays and X-rays are not an input for this machine and therefore, it is an independent apparatus. In these circumstajnces, we find that the item is rightly classifiable under CTH 90229090/90221490 and hence not eligible for the benefit of the Notification.

6.2 We find that Drypix 7000 is an instrument/applicants which is exclusively meant for medical use. This machine prints the image of X-Ray obtained on imaging plate and cannot be used for printing on paper or otherwise for general purposes. On perusal of the CTH 9022 and the literature available, we find that these items conclusively contribute to well defined function of X-ray based diagnosis apparatus. CTH 9022 covers not X-ray machine but apparatus used in diagnoses. The apparatus used in diagnoses would therefore include the impugned items as essential parts of apparatus. Therefore, the item is rightly classifiable under CTH 90229090 and not eligible for the benefit of the Notification.

6.3 We find that Imaging plates & LP. Cassettes. Imaging place (IP is used instead of film to record X-ray images). The IP contains photostimulable phosphors that store X-ray energy. Scanning, the IP releases the energy, producing electronic signals, which are converted to digital values. Barium fluorohalide (BafX) phosphors in a high density layer deliver the sensitivity, sharpness and low noise in computed radiographic diagnosis the LP. is inserted in a cassette for X-ray exposure. In these circumstances, we find that the items are rightly classifiable under 90189099 and eligible for the benefit of Notification as applicable.

6.4 The Id. Commissioner (Appeals) order is modified to above extent and appeal is disposed of in the above terms.

(Dictated in Chamber)

Equivalent 2014 (300) ELT 0568 (Tri. - Mumbai)