Page 153 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] COMMISSIONER OF CUSTOMS (PORT) v. SANWAR AGARWAL 687

fied under Chapter 90 ibid was not to be interfered with - Conclusion that im-
pugned circular cannot alter very nature and efficacy of product from that
which was used in connection with renal dialysis to being mere purifier of
liquids, correct - Order of single judge affirmed. [paras 4, 5, 6, 7, 8, 9]
Departmental clarifications - Circulars and Instructions - Instructions
issued under Section 151A of Customs Act, 1962 cannot alter structure of
schedule under Customs Tariff Act, 1975 nor can such instructions be issued
for purpose of altering position of any goods from one Chapter to another
within First Schedule to Customs Tariff Act, 1975. - Instructions that may be is-
sued by the Central Board of Excise and Customs cannot be a substitute for the procedure
of amendment or alteration by rules that is delegated to the Central Government. In-
structions can pertain to an interpretation to bring about uniformity, but such instruc-
tions cannot be used to uproot a class of goods or any product from one chapter and plant
it in another. That would be the authority of the Central Government in accordance with
the provisions of the Act of 1975. [paras 5, 6]
Appeal dismissed
DEPARTMENTAL CLARIFICATION CITED
C.B.E. & C. Circular No. 19/2013-Cus., dated 9-5-2013 ................................................................. [Paras 1, 8]
REPRESENTED BY : S/Shri Amitabrata Roy and B.P. Banerjee,
Advocates, for the Appellant.
S/Shri Pranab Kr. Dutta, Senior Advocate and
Shovendu Banerjee, Advocate, for the Respondent.
[Order]. - The Court : The Revenue assails a judgment and order of April
7, 2016 [2016 (336) E.L.T. 42 (Cal.)] on a petition under Article 226 of the Constitu-
tion challenging a Circular issued by the Central Board of Excise and Customs on
May 9, 2013 and the consequential notices issued to the writ petitioner and steps
taken against such petitioner.
2. The matter pertains to disposable sterilised dialysers. The writ peti-
tioner deals in hollow fibre dialysers. Such equipment is at the heart of any dial-
ising unit or artificial kidney as the purification of the blood is undertaken by
such equipment. In the usual course, such equipment was claimed by the writ
petitioner to be covered by Chapter 90 of Section XVIII of the first schedule to the
Customs Tariff Act, 1975. The relevant section covers optical, photographic, cin-
ematographic, measuring, checking precision surgical instruments and like
products. Chapter 90 deals with optical, photographic, cinematographic, measur-
ing, checking, precision, medical or surgical instruments and apparatus and the
parts and accessories thereof. The second note to Chapter 90 provides that parts
and accessories for machines, apparatus, instruments or articles of such chapter
are to be classified according to, inter alia, the parts and accessories which are
goods included in any of the headings of such chapter, other than certain speci-
fied exceptions.
3. Just as in other chapters, Chapter 90 carries a table which has five
columns. The tariff item is described in numericals in the first column, the rele-
vant product is described in detail in the second column, the unit of measure-
ment is indicated in the third column and the rate of duty is specified in the
fourth and the final column. There are groups of products which are bundled
together and the broad groups all carry numbers like 9001, 9002, 9003 and the
like in Chapter 90. The more specific nature of the goods is revealed in the fur-
EXCISE LAW TIMES  1st June 2020  153