BOSTON SCIENTIFIC INTERNATIONAL Vs. COMMR. OF CUS.

JUDGEMENT

(1.) The issue raised in this appeal is whether Endoscope Stents are eligible for exemption from duty under SI. No. 348B of Notification No. 17/2001 -Cus. Different types of Stents involved in the dispute are Uretheral Stents, Percuflex Stent, Pigtail Stent, Wall Stent, Biliary Stent, Biliary drawn Stent etc. SI. No. 348 covers the following goods namely : -

(2.) The impugned order has held that the Stents in question do not fall in the category of accessories for endoscope and for that reason they are not eligible for the exemption. The impugned order has observed as under : - "Endoscopy placement of Stents helps in avoiding traditional surgery. Therefore, it is clear that Endoscopes which are mainly used for diagnosis are also used for placing or stationing Stents at the required place. Therefore, it is clear that at best, Endoscopy can be called as a tool used for the proper placement of Stents and Stents are no way concerned with the functioning of the Endoscopes as such nor are they anywhere associated with the enhancement of the performance level of the Endoscopes nor do they add to the efficacy of the Endoscopes in the strict sense of the term. In other words, while an Endoscope can function without a stent, the stent requires an endoscope to properly place it inside the human system. Therefore, the plea that stent is an accessory of an endoscope is not acceptable. On the other hand, endoscope is a too! used for proper placement of stents".

(3.) The appellant had relied on the decision of the Apex Court in the case of Mehra Brothers v. Jt. Commercial Officer reported in 1991 (51) E.L.T. 173 (S.C.) in support of their claim that Stents are accessories. The Commissioner noted that the Apex Court had held in the aforesaid decision that the accessories would be "anything which is joined to another thing as an ornament or to render it more perfect or which accompanies it or is connected with it as an incident or as subordinate to it or which belongs to or with it adjunct or accompaniment". - A thing of subordinate importance Aiding or attributing in secondary way of assisting or attributing to as subordinate. He also noted that as per the decision in the case of Collector v. Jolly Exports, 1990 (45) E.L.T. 612, an accessory means something which contributes in a subordinate degree to attain a general degree (results) or effect. The impugned order has observed that the Stents under import are not accessories of endoscopes as they are not in any way required for the functioning of endoscope. The order also noted that the Stents are not attached to endoscope and the endoscope can function independently. It is further noted that the Stents do not enhance the efficiency or improve the functioning of endoscopes and they are not imported together as a necessary adjunct or accompaniment. The order came to the conclusion that the Stents are independent of endoscope functionwise and cannot be treated as accessories.