Page 210 - ELT_1st August 2020_Vol 373_Part 3

392 EXCISE LAW TIMES [ Vol. 373

is sought by the appellant; the sine qua non for the item to be considered under
this category is as to whether these goods are having the prerequisite characteris-
tics of a Skin barrier along with the microporous properties, as the primary objec-
tive of the products brought under the category of Ostomy appliances are prod-
ucts which are used to create the OSTOMY POUCH or for the special Care of the
Skin around the Ostomy area; skin care in such surgeries is of utmost importance
as the fecal and urinary content that empty into the pouches are to be prevented
from affecting the skin around the pouches or Ostomy area so as to not cause any
irritation or excoriation; skin Barriers are essentially coverings which have the
property of not allowing Microbes or External agents from reaching the Skin and
by way of this characteristic would not allow the Ostomy exudates to reach the
skin surrounding the Ostomy area and thus maintain the integrity and quality of
the skin as explained by O-I-O at Para 5.1.
13.1 He further submits that while Micropore Tapes might have been
developed by the Appellant, their primary use or application is to act as adhesive
tapes, but being hypoallergenic (less prone for allergic reactions) and without
causing the painful peeling off sensation like the earlier cloth-based tapes; thus
the products as marketed and as being practically being used are for these pur-
poses i.e. to hold bandages/dressings and tubes or even the colostomy bags as
an additional reinforcement or affixation aid; micropore is a paper based tape,
whereas Transpore is a Polymer based tape with micro porous properties which
allows the tape to breathe, but do not act as Skin Barriers; it is only when com-
bined with Skin Barriers that such tapes would fall within the ambit of the entry
in the Exemption Notification.
13.2 The appellant has placed his reliance on the decision of the Chen-
nai Bench of the Hon’ble Tribunal in the case of M/s. Sutures India Pvt. Ltd. (su-
pra); it is noteworthy to point out that the said decision has been rendered after
the 3rd Member reference on the premise that the said goods and other items like
adhesive seals, adhesive remover, skin gels are items used for general purposes
but find use also in ostomy procedures; there is no end use condition/exclusive
use condition that such products need to be used only for ostomy applications
and it is enough if they are used in relation to ostomy procedure and that the
department has not been able to show any product which fits into the category of
surgical tapes meant for Ostomy only. He submits that the said decisions have
been taken by the Bench without taking note of the fact that the item eligible for
the benefit is a combination product of Skin Barrier Micropore Surgical Tape which
combines the dual properties of preventing the seepage of the ostomy discharge
onto the surrounding skin thus preventing harm to the skin as well as having the
microporous breathing characteristics; the Bench has not been made aware of the
existence of such products and hence the Bench has arrived at the conclusion that
such products are not available.
13.3 He submits that however, in the impugned order the Commis-
sioner and the investigating authority have shown that there are products which
fit into the category as envisaged in the entry; such a product, HOL-3722 from
MEDEX SUPPLY (Para 5.1) and the product Literature of the said product is
placed as RUD; the said product is described as “Cut to fit Flex wear Flat Skin bar-
rier, Porous paper tape 1-3/4”; also products known as “Coloplast’’ one piece -
5600 (at Page 398) and “Coloplast one piece -5801” which also are described as
“flexible skin barrier and tear proof microporous tape for double security” are men-
tioned; it is such products which have the aforesaid properties of “Skin Barrier
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