By TIOL News Service

BANGALORE, AUG 29, 2018: THE appellant imported Anesthesia Ventilatory System by classifying the goods under CTH 9019 2090 and claimed concessional rate of duty as per Sl. No. 363 (A), List 37 of Notification No. 21/2002-Cus. dated 1.3.2002 and Item No. 3 under CE Notification No. 6/2006 dated 1.3.2006.

The benefit of concessional rate of duty was denied by the original authority and the appeal of the importer was rejected by the Commissioner (A) on the grounds that the said exemption under Notifications are available only to 'Ventilators used with anesthesia operators' whereas the impugned goods are Anesthesia Delivery System.

The importer is before the CESTAT.

It is submitted that the wordings used in the Notification are "Ventilator used with anesthesia operators”; that the Notification does not mention that the ventilatory function should be predominant or the anesthesia function should be predominant; that the technical write-up given by the manufacturer clearly shows that the impugned goods are essentially a ventilatory system along with Anesthesia Delivery System and that the anesthetic gas mixture is delivered to the patient through the ventilator. The appellant also submitted that expert opinions obtained from the Indian Society of Anesthesiologists, Kolkata and Delhi Heart and Lung Institute, Department of Cardio-thoracic and Vascular Surgery, New Delhi were placed before the Commissioner (A) but the said technical opinions were ignored.

It is further submitted that the issue is no longer res integra in view of the Tribunal decisions in their own case reported as - 2009-TIOL-2232-CESTAT-DEL, - 2010-TIOL-146-CESTAT-BANG & Wipro GE Medical Systems Pvt. Ltd.- 2010-TIOL-206-CESTAT-BANG .

The AR reiterated the stand taken by the department and also adverted to the apex court decision in M/s. Dilip Kumar and Company & Ors. - 2018-TIOL-302-SC-CUS-CB wherein it has been held that "…Exemption Notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption Notification. Even when there is ambiguity in the Notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the Revenue".

In response, the appellant relied upon the decision in UOI vs. Wood Paper Ltd. - 2002-TIOL-454-SC-CX in support.

The Bench considered the submissions and observed that the apex court in the decision cited by the AR [in Dilip Kumar & Co. (supra)] had categorically stated that in case of ambiguity alone the benefit of interpretation should go to the Revenue .

It was also observed that the CESTAT, Bangalore had decided the same issue vide Final Order No. 20419 - 20421/2018 dated 12.2.2018 in respect of the very same appellants for previous imports without finding any ambiguity in the notification and by relying upon the earlier order passed by the Delhi Tribunal - 2009-TIOL-2232-CESTAT-DEL.

Noting that the AR had not brought anything on record to indicate that the said order of the Tribunal had been appealed against and, therefore, the Tribunal's order had attained finality and as there is no apparent ambiguity in the Notification, the question of applying ratio of the case of Dilip Kumar Company & Others (supra) did not arise, the Bench concluded.

The Bench also relied upon the apex court decision in Lekhraj Jessumal & Sons [1996(101) STC 480(SC)] wherein it is held that technological advancement should not become an impediment to the availment of benefit.

In fine, the appeal was allowed.

(See 2018-TIOL-2647-CESTAT-BANG)