INDIA MEDTRONIC PVT. LTD. Vs. CC

JUDGEMENT

(1.) The issue involved in this Appeal, filed by M/s. India Medtronic Pvt. Ltd. is whether the benefit of Notification No. 17/2001 -Cus. dated 1.3.2001 (serial No. 348) is available to CVR (Cardiotomy/Venous Reservoir With filter) imported by them.

(2.) Shri Willingdon C., learned Advocate, submitted that oxygenator in question is an improved model keeping in view the constantly changing cardiac surgery environment and the new improved model is only updated old model oxygenator; that the imported goods is clearly described in the catalogue etc. as Oxygenator and is capable of and in fact is performing the major and primary functions of oxygenator; that the oxygenator is with an additional attachment on cardiotomy venous reservoir which is an integral part and inseparable from oxygenator; that Oxygenator cannot function without the help of the CVR; that the catalogue of the product makes it very clear that the impugned goods is nothing but an oxygenator meant for performing an important role in oxygenation process. The learned Advocate referred to Butter -worth's Medical Dictionary according to which Oxygenator is "an artificial device for the oxygenation of blood during cardiopulmonry by -pass." He then mentioned that CVR is a specially designed attachment for the oxygenator; that CVR is designed as an integral part of the oxygenator and is necessarily a component part or an essential accessory of the oxygenator; that in any case the Notification covers not only medical equipment specified in List 29 (Oxygenator finds mention at Serial No. 23 of List 29) but also accessories of the medical equipment specified in List No. 29; that, therefore, CVR, even if considered as an accessory, will be eligible for the exemption by express terms employed in the Notification. Alternatively he submitted that Cardiotomy Venous Reservoir (CVR) should be considered as an accessory to 'Heart Lung Machine" which is mentioned at Serial No. 10 of List 29 of the Notification No. 17/2001 -Cus.; that reservoir has been treated as an accessory to heart lung machine in the old Notification No. 208/81 -Cus., dated 22.9.1981 [Serial No. B(9]; that as such the impugned product is eligible to the benefit of Serial No. 348 of Notification No. 17/2001 -Cus.

(3.) Countering the arguments, Mrs. Neeta Lal Butalia, learned Senior Departmental Representative, submitted that Oxygenator and CVR are two complete identifiable goods known as "Oxygenator" and "CVR"; that the foreign supplier is marketing oxygenator" and "CVR" as two completely separate products. In support of her contention she produced two write -ups from the website of M/s. Meditronic namely Trillium Affinity NT Oxygenator" and 'Affinity CVR Cardiotomy /Venous Reservoir' (www.meditronic.com/ cardiosurgery/arrested -heart/aff -res.html). The learned Senior Departmental Representative also mentioned that both the products are different is apparent from the 'Ordering Information' according to which Model 511T is Hollow Fiber Oxygenator whereas Model 540 is CVR with filter. She also contended that Appellants have not adduced any technical literature to show that CVR is a part or accessory of oxygenator or heart lung machine; that thus the benefit of the Notification is not available to CVR. 4. We have considered the submissions of both sides. Sl. No. 348 of Notification No. 17/2001 -Cus, exempts from payment of Customs duty(a) Medical equipment and other goods, specified in List 29, and (b) Accessories of the medical equipment of (a). It is not in dispute that 'Cardiotomy Venous Reservoir (CVR) is not mentioned in List 29 of the Notification. Both the lower authorities have not accepted the contention of the Appellants that CVR is a part/accessory of Oxygenator. The Adjudicating Authority has found CVR and Oxygenator two separate products by quoting from the product literature wherein it has been mentioned that Oxygenator and CVR may be separated and utilized with separate holders. The Commissioner (Appeals) has observed that oxygenator stands for an artificial system where blood -gas exchanges takes place imitating the human or mammalian body physiology and thus oxygenator works only for the exchange of gases and not for the storing or any other function related to blood. The Appellants have also placed the photograph of oxygenator in the records which clearly shows that CVR is not a part of the Oxygenator at all. The definition of Oxygenation as given in Butterworth's Medical Dictionary also does not advance the case of the Appellants. They have also not brought on record any technical literature in support of their contention that CVR in question in an accessory of oxygenator. The learned Advocate has alternatively claimed that the impugned CVR is an accessory of heart lung machine and as such eligible for Nil rate of duty under serial No. 348 of the Notification. Again no technical write up or material has been adduced in support of their contention that CVR is an accessory of heart lung machine. The learned Advocate has only relied upon Notification No. 208/81 -Cus wherein the venous reservoir was granted exemption. The said Notification [Sl. No. B(9)] reads as under: "Heart Lung Machine and accessories including Y and straight connections, Heat Exchanger, arterial and venous reservoirs and filters." 5. This description does not support the contention of the learned Advocate that the cardiotomy Venous reservoir in question is an accessory of heart lung machine as the description in the Notification is an inclusive one. Thus, the learned Advocate has not succeeded in establishing that CVR in question is an accessory of heart lung machine. In view of this, the Appeal is rejected.