Page 218 - ELT_1st August 2020_Vol 373_Part 3

400 EXCISE LAW TIMES [ Vol. 373

26. The appellants have relied upon the decision of coordinate bench, at
Chennai in the case of Sutures India Pvt. Ltd. (Supra), stating that the Tribunal has
gone into the imports of similar products and decided that the applicability of
notification has been decided in appellants favour. Per contra, the Learned Au-
thorised Representative submits that the coordinate Bench has arrived at the said
decision 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; it is enough if the
impugned goods are capable of being used in relation to ostomy procedure; de-
partment has not been able to show any product which fits into the category of
surgical tapes meant for Ostomy only. He further distinguishes the decision of
the coordinate Bench stating that the Bench did not consider the fact that the item
eligible for the benefit is a combination product of Skin Barrier Micropore Surgi-
cal 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; it was not convincingly
demonstrated before the Chennai Bench that a product having dual use and fit-
ting the description as mentioned in the Notification exists and thus, the Bench
arrived at the conclusion that such product known as’Skin Barrier Micropore
Surgical Tape’ do not exist. On the basis of the facts and circumstances of the
present case and as demonstrated before us, we find that products known as
‘Skin Barrier Micropore Surgical Tape’ exist and that the impugned goods do not
match the description given in the notification so as to be eligible for the exemp-
tion. While we are in agreement with the coordinate Bench that there is no specif-
ic mention in the Notification that Skin Barrier Micropore Surgical Tapes have to
be exclusively used for ostomy procedures and it is enough if they are capable of
being used, we find that to be eligible for exemption the impugned goods need
to match the description as given in the notification and only then the question of
their actual use or capability of being used would come into play. We also find in
the instant case that the department could produce evidence to show that prod-
ucts known as “Skin Barriers Micropore Surgical Tapes” exist. We find in our
considered opinion that the real issue is whether the impugned goods can be cat-
egorised as “Skin Barriers Micropore Surgical Tapes” to be eligible to the exemp-
tion. As per our discussion above, the distinction between the impugned prod-
ucts and the items eligible for exemption has been clearly established. It was also
established that products which can be described as “Skin Barriers Micropore
Surgical Tapes” exist. Therefore, having considered the facts of the case, we find
that the department could satisfactorily demonstrate the twin points that the im-
pugned goods do not satisfy the description given in the Notification and that
the products mentioned in the Notification exist in reality. We find that there is
no ambiguity as far as the description of the items in the notification and that the
impugned goods do not satisfy such description so as to be eligible for exemp-
tion. As the wordings of the notification give meaning which is not ambiguous,
we find that the Apex Court’s judgment in Dilip Kumar case (supra) is binding
and needs to be followed.
27. We also find that Apex Court in the case of Srikumar Agencies Civil
Appeal Nos. 4872-4892 of 2000, decided on 27-11-2008 [2008 (232) E.L.T. 577

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