Page 209 - ELT_1st August 2020_Vol 373_Part 3

2020 ] 3M INDIA LTD. v. COMMISSIONER OF CUSTOMS, BANGALORE-I 391

other goods and (B) Accessories of medical equipment mentioned in (A); the
tapes imported by the Appellants are used as an accessory to the pouch inas-
much as it is used to secure the pouch and other goods securely to the body of
the patient; therefore the Appellant would anyway be entitled to the exemption
under Sl. No. 363(B); as held in the impugned Order, the impugned tapes are
used to additionally secure the ostomy appliances such as bags, clamps etc. in
place; thus the impugned tapes are accessories to various appliances listed in List
37; being accessory to medical equipment mentioned in Sl. No. 363(A) are enti-
tled to exemption under Sl. No. 363(B). Learned Counsel submits that alterna-
tively, Sl. No. 365 of the Notification No. 21/2002 provides exemption to ‘Life-
saving medical equipment including accessories or spare parts or both of such
equipment’ subject to production of certificate from the DGHS that the products
imported are ‘Lifesaving goods’; DGHS have given necessary certificates to the
appellants; it is settled law that the benefit of exemption can be claimed at any
stage as held in Share Medical Care v. UOI - 2007 (209) E.L.T. 321 (S.C.).
11. Learned Senior Counsel submits that extended period is not invo-
cable in the case; Show Cause Notice is issued on 30-9-2011 demanding duty for
the period October 2006 to February 2010; packing material of the products clear-
ly shows the various applications to which the products can be put to use. The
packing material describes the material not only as meant for general pur-
pose/use’ but also as meant for securing ostomy pouches/devices/appliances
etc; over the past several years the consignments have been subjected to physical
examination by officers of the Customs Department before allowing clearances of
the same; no objection whatsoever had been raised the claim of subject exemp-
tion under Notification No. 21/2002-Cus. at any time in the past; the fact that
Hon’ble Tribunal in the case of Sutures India Pvt. Ltd. (supra) has extended ex-
emption under Sl. No. 363(A) of Notification No. 21/2002, dated 1-3-2002 to simi-
lar products proves that the Appellant was justified in entertaining a bona fide
belief that the impugned goods are entitled to exemption; in any case claiming
incorrect classification and exemption Notification does not amount to misdecla-
ration warranting invocation of longer period and imposition of penalty; appel-
lants have neither suppressed the facts nor had any intention to evade payment
of duty and therefore penalty is not imposable under Section 114A of the Cus-
toms Act.
12. Dr. J. Harish, Joint Commissioner, Authorised Representative, ap-
pearing for the department reiterated the findings of OIO and submitted written
submissions. He submitted inter alia that the appellant claimed exemption Notifi-
cation 21/2002-Cus.; Sl. No. 363A (List 37, Sl. No 22) under the category of
Ostomy Products; appellants sought clearance of the products under the catego-
ry of ‘micropore surgical tapes’ claiming that the items have microporous prop-
erties and are used in Ostomy procedures though they are being commonly used
for other purposes also like fixing IV Cannulas, Bandage fixation and to hold
tubes and other general purpose applications; the stated application in Ostomy
cases is for giving Additional support/for affixing the Ostomy Bags or pouches;
the claim is based on the premise that the said entry was also available under the
earlier Customs Notification 208/1981-Cus. under which also these products had
been cleared as lifesaving equipment based on the DGHS certification as was
required under the conditions of the notification.
13. He submits that the claim under the present entry is to be read as
for “Skin barriers micropore surgical tapes “and not only as ‘micropore tapes’ as
EXCISE LAW TIMES  1st August 2020  209