Page 213 - ELT_1st August 2020_Vol 373_Part 3

2020 ] 3M INDIA LTD. v. COMMISSIONER OF CUSTOMS, BANGALORE-I 395

Sl. No. 90 or any The following goods namely :
363A Chapter (A) Medical equipment (excluding Foley Balloon Cathe-
ters) and other goods, specified in List 37.
List 37 S. No. 22 Ostomy products (Appliances) for managing Colostomy,
Illcostomy, Ureterostomy, Illeal Conduit Urostomy Sto-
ma cases such as bags, belts, adhesives seals or discs or
rolls adhesive remover, ‘Skin Barriers Micropore Surgi-
cal Tapes’, bag closing clamps karaya seals paste or
powder, irrigation sets, plastic or rubber faceplates,
flanges, male or female urinary incontinence sets, skin
gels, in parts or sets.
On going to the above notification it is seen that “Skin Barriers Micropore Surgi-
cal Tapes” is mentioned as a single heading whereas, the appellants would like
to read it as “Skin Barriers”, “Micropore Surgical Tapes” holding that there is no
product known as “Skin Barriers Micropore Surgical Tapes”; the expression was
similar in the earlier forms of the notification; another heading “bag closing
clamps karaya seals paste or powder”, is also mentioned in notification as a sin-
gle entry and there are no such products known in the market; therefore “Skin
Barriers Micropore Surgical Tapes” should be read as “Skin Barriers”, “Mi-
cropore Surgical Tapes”.
19. We find that the OIO has dealt this issue at length to establish the
existence of products known as “Skin Barriers Micropore Surgical Tapes”. Rele-
vant paras of the OIO are as follows.
“27. From the facts of the case above, it is undisputed that the no-
ticee claimed the benefit of exemption in respect of three types of Surgical
Tapes imported by them known under the brand names Micropore,
Transpore and Tegaderm, as “Skin Barriers Micropore Surgical Tapes”. It is
alleged that the goods imported are not skin barrier micropore surgical
tapes but are all purpose ‘surgical adhesive tapes’, Noticee does not deny
this fact. But the averment is that these can be used as ostomy appliances.
In fact the noticee has gone one step ahead. The contention is that there is
no medical item which is “Skin Barriers Micropore Surgical Tap” and that
comma is missing in the description in the notification and that the said en-
try should be read as two different items, namely, ‘skin barriers’ and ‘mi-
cropore surgical tape’. It is claimed that the items imported by them are
‘micropore surgical tape’. It is averred that the surgical tapes imported by
them can be used in ostomy management. It is also the case of the noticee
that it is enough if the goods are capable of being used as Ostomy Prod-
ucts/Appliances to claim the benefit of notification and that there is no
condition that the imported goods are to be used as ostomy appliances on-
ly.
28. DRI, on the other hand, has shown that there is a product which
is called “Skin Barriers Micropore Surgical Tapes” as shown in RUD No.12
which refers to Medex Supply product “HOL-3723 Cut-to-fit Flex wear Flat
Skin Barrier, Porous Paper Tape, 2-1/4”, manufactured by M/s. Hollister. It
is also seen that M/s. Coloplast also make another similar product, the de-
tails of which are given in RUD 13 “Brand/Description : “Closed Cut-to-fit
- Non-Convex, Transparent 5/8-2 3/8” (1560MM) w/Curagard Barrier 8
long 600 ml latex free. Flexible Skin Barrier and tear-proof microporous

EXCISE LAW TIMES  1st August 2020  213