Page 208 - ELT_1st August 2020_Vol 373_Part 3

390 EXCISE LAW TIMES [ Vol. 373

9. He submits that the use of the impugned goods for ostomy is undis-
puted and the impugned goods are therefore entitled to exemption. ‘Skin barrier’
and ‘micropore surgical tapes’ are two distinct products and there is no product
corresponding to the description ‘Skin barrier micropore surgical tapes’ as
averred in the impugned order; certain products in List 37 have not been sepa-
rated by appropriate commas; list mentions bag closing clamps karaya seals
paste or powder; a plain reading of the sentence would indicate that it is one
product, whereas the actual usage as described above, would show that the bag
closing clamps have an entirely different function and the ‘karaya seal’ has its
own distinct function; there can be no product called as ‘bag closing clamps
karaya seal paste or powder’; It makes sense only it’ the expression is read as bag
closing clamps’, karaya seal, paste or powder; similar is the case of ‘skin barriers’
and ‘micropore surgical tapes. Literal meaning of a ‘skin barrier’ is that the
product acts as a ‘barrier’ to the skin i.e. it does not allow anything to come in
contact with the skin; whereas, ‘micropore’ means having pores’; surgical tapes
are manufactured with minute pores so that the skin can breathe through it; thus,
the entry should aptly read as ‘skin barriers’ and ‘micropore surgical tapes; in the
product description of 1-IOL-3722’ the words ‘skin barrier’ and ‘porous paper
tape’ are separated by a comma; this evidences that there is no product answer-
ing to the description ‘skin barrier micropore surgical tape’; this further supports
the claim of the Appellants that the expression skin barrier micropore surgical
tape’ used in the Notification ought to be separated by a comma and exemption
should be granted to both ‘skin barrier’ and ‘micropore tapes’; further, the doc-
ument for the product I-IOL-3722 is dated 25-11-2008 whereas the expression for
‘skin barrier micropore surgical tapes’ was available in the Notification from 22-
9-1981 itself; if the observation of the Commissioner that the exemption is appli-
cable only to products such as HOL-3722 implies that the Notification was issued
with a foresight that such a product would be developed; alternately, it could
also mean that the product was developed based on the entry in the Notification;
both the above views would lead to absurdity.
9.1 Learned Senior Counsel submits that as explained elsewhere, skin
barriers and microporous tapes are normally different; though the notification
has mentioned the same as a single entry; in fact in the Customs Tariff, a specific
heading is available for micropores surgical tapes’; Tariff had not used the ex-
pression ‘skin barrier’; in 2007, Heading 3006 91 00 was inserted in the Tariff with
the description ‘Appliances identifiable for ostomy use’; clause (k) under Note 4
in Chapter 30 states Heading 3006 applies to ‘appliances identifiable for ostomy
use, that is, colostomy, Ileostomy and urostomy pouches cut to shape and their
adhesive wafers or faceplates’; thus, even after amendment in 2007, the Tariff
does not describe the product as ‘skin barrier micropores surgical tapes’ but as
adhesive wafers of ‘pouches’; therefore it is submitted that if the expression ‘skin
barriers micropore surgical tapes’ in Sl. No. 22 of List 37 is taken to denote a sin-
gle product, read with the description in the Tariff, it can only apply to the ‘sur-
gical tapes’ as imported by the Appellants; he places reliance on the decision of
the Tribunal in the case of Equipment Sales Corporation reported in 1989 (39) 431
wherein the benefit of erstwhile Notification No. 208/81-Cus., dated 22-9-1981
was extended to Micropore Surgical Tapes.
10. Learned Senior Counsel submits that alternatively, the imported
goods are entitled to exemption under Sl. No. 363(B) of the Notification. It is
submitted that Sl. No. 363 in the Notification exempts (i) Medical Equipment and
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