Page 207 - ELT_1st August 2020_Vol 373_Part 3

2020 ] 3M INDIA LTD. v. COMMISSIONER OF CUSTOMS, BANGALORE-I 389

(iii) Certificates dated 15-9-1992 issued by the Directorate General of
Health Services to the effect that Transpore and also Tegaderm is a
‘Skin Barriers Micropore Surgical Tape and are Lifesaving items
covered under Sl. No. 22B of Part B of - Customs Notification No.
208/1981.
(iv) Extracts of literature wherein use of 3M tapes in managing ostomy
is discussed.
(v) Copy of purchase orders, sale invoices and certificates from the
hospitals and the letter from Ostomy Association of India.
B.10 it can be seen there from that the products have in fact been used for
managing ostomy cases and therefore, the products qualify as ‘ostomy
products (appliances)’ eligible for exemption.
7. Learned Senior Counsel submits that without prejudice to the above
submission that the imported tapes are actually used for ostomy care, the Notifi-
cation provides exemption to all ‘Ostomy products (appliances) for managing
stoma cases’ and nothing can be read into it to grant exemption only on proving
that the products have actually been used for managing stoma; the expression
‘ostomy products for managing ostomy’ is to be interpreted as an item intended
for use or capable for use as an ostomy appliance and the exemption would be
extended. Once it is established that the products are ‘Ostomy appliances’ capa-
ble of being used in managing the stoma cases (including the four types men-
tioned), there is no requirement to show that the goods have been actually used
for such purpose; he places reliance on the following wherein the expression “for
use” was interpreted as an item intended for use or capable for use as an ostomy
appliance.
(i) State of Haryana v. Dalmia Dadri Cement Ltd. reported in 2004 (178)
E.L.T. 13 (S.C.)
(ii) Ramsons Garments Fishing Equipment Pvt. Ltd. v CCE, Bangalore re-
ported in 2007 (211) E.L.T. 44 (Tri. - Bang.)
(iv) West Dinajpur Spinning Mills Ltd. v. CCE reported in 2006 (203)
E.L.T. 474 (Tri. - Kolkata)
(v) Board Circular No. 1/2005, dated 11-1-2005 which clarified that No-
tification No. 21/2002 allows the import of general-purpose ma-
chinery also so long as they are capable of use in textile industry.
8. Learned Senior Counsel submits that the expression for use’ con-
tained in Sl. No. 22 of List 37 shall be read as ‘capable of use’ and the exemption
shall be extended as the imported goods are capable of being used and have been
used for managing ostomy cases; appellants have produced several documents
evidencing use of imported goods for the purposes of ostomy; department has
not produced any evidence to establish that the impugned goods imported by
the Appellant is not necessary in ostomy procedure.
(i) Special Court for Economic Offences held, vide order dated 11-2-
2019, that based on the literature and patents downloaded from the
website, it cannot be held that the imported surgical tape is not usa-
ble in ostomy procedure;
(ii) Shri K.K Ghosh, SIO, DRI admitted during Cross-Examination that
the relied upon document does not state that the tape is not used for
Ostomy purpose.
EXCISE LAW TIMES  1st August 2020  207