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Judgment
Kanakaraj, J.—In these three writ petitions, the Petitioners are claiming exemption from customs duty in respect of certain goods claiming them to be "Intravenous Canulae and Tubing for long term use" under Notification. 208/81 dated 22.9.1981. The three writ petitions relate to three different shipments, the first for 3,16,000 pieces under Invoice No. CMS/104/03/91 dated 21.3.1991, the second for 2,04,000 pieces covered under Invoice No. CMS/105/03/91 dated 21.3.1991 and the third for 5,00,000 pieces covered by Invoice No. CMS/106/05/91 dated 20.5.1991. The third Respondent disallowed the claim and held that the subject goods were liable to customs duty at the rate of 40 per cent under Notification 65/88 and Notification No. 159/89. In other words, the third Respondent denied the Petitioners the application of Notification No. 208/81 dated 22.9.1981. The prayer in all the writ petitions is to quash the said order of the third Respondent dated 26.4.1991 and 12.6.1991 and to direct the Respondents to release the goods without payment of any customs duty. The goods are described in the Bills of Entry variously as "intravenous canulae and tubing for long term use (Infusion set), Intravenous canulae and tubing for long term use (Scalp vein set). It is not disputed before me that the subject goods are in fact, Scalp vein sets, but the Petitioners are claiming them to be "intravenous canulae and tubing for long term use."
Pending disposal of the writ petitions, by way of interim orders made in W.M.P. Nos. 13275, 13276, 13277, of 1991 dated 26.6.1991, this Court directed the goods to be released without payment of any duty, but on the execution of a personal bond. This was without prejudice to the rights of the Petitioners to challenge the order in appeal. At the outset a controversy arose as to whether the writ petitions should be disposed of permitting the Petitioners to agitate their claim by filing statutory appeals. Apparently, the Petitioners are willing to adopt that course because by way of interim orders they had their goods cleared without payment of any duty. On the other hand, the Revenue feels that such a course will prejudice the interest of the Revenue because the legal position is now almost clear in the sense that the subject goods are not eligible for the exemption under Notification No. 208/81 dated 22.9.1991. In other words, the parties are arguing quite contrary to the pleas taken in the affidavit and counter-affidavit. While in the affidavit filed in support of the writ petitions, it is stated that there is no other effective alternative remedy available to the Petitioners except to seek redress under Article 226 of the Constitution of India, the counter affidavit is equally emphatic in saying that the writ petitions are not maintainable because they ought to have filed an appeal before the Collector of Customs. The Revenue is now insisting on a decision by this Court hoping to recover the customs duty on the subject goods without any further delay. Reliance is placed on the judgment of the Calcutta High Court in Trio Marketing Pvt. Limited Vs. Union of India (UOI), (hereinafter called Trio Marketing Case). On the other hand, Learned Counsel for the Petitioners says that expert''s evidence may be required to come to a clear conclusion as to whether the subject goods can be categorised as "intravenous canulae and tubing for long term use". I was a little perplexed as to the course of action to be adopted. Normally, at the time when the writ petitions come up for final disposal, we rarely dismiss the writ petitions on the plea of an alternative remedy. I do not see why the same course should not be adopted in these cases also, because a party who has approached the Court should be able to sustain his plea especially, because they had obtained substantial relief by way of customs duty and had enjoyed the benefit from June, 1991 onwards. Therefore, the Petitioners have to stand or fall on the basis of their averments in the affidavit filed in support of the writ petitions.
Before dealing with the rival arguments, it is necessary to notice the various exemption notifications, modifications and amendments issued from time to time in the chronological order. By notification No. 208/81 dated 22.9.1981, the Central Government exempted certain life saving drugs, medicine and equipments from the whole of the customs duty. Item 19 of Schedule ''B'' of the Notification is as follows:
"Intravenous Canulae and tubing for long term use." In Notification No. 367/86 dated 24.6.1986, the following words were added in Item 44 of Schedule B to the Notification No. 208/81.
Ancillaries for Blood Component Theraphy Required For The Treatment of Cancer Namely Type Blood Solution Recipient Set Butterfly Needle G - Infusion Set....
By Notification No. 65/88 Customs, dated 1.3.1988 which came into force from 1.3.1989, the Central Government exempted so much of the duty of customs in excess of 40 per cent ad valorem in respect of certain goods, and Item 149 under Clause ''C'', other medical equipment the following was inserted.
"Infusion-Sets".
By Notification 46/89 Customs dated 1.3.1989 the following words added under Item 44 of Schedule-B of Notification 208, dated 22.9.1981 was deleted.
"Butterfly Needle G - Infusion set."
I will now advert to the decisions of the Appellate Collector and the Tribunal (CEGAT) in a chronological manner so that we can appreciate the value of the judgments vis-a-vis the Notification in force on that date. The first decision relied on is 1988 (15) ECR 298 rendered by the Tribunal. The date of the judgment is 15-12-1987. A perusal of the judgment shows that what was dealt with by the Tribunal related to "intravenous canulae and tubing for long term use". But actually the discussion shows that the goods dealt with were called "Centracath IV Canula" and the same were equated to the item "Intravenous Canula and Tubing for long term use". The Tribunal relied on the certificate issued by the Director General of Health Service dated 13.11.1987, certifying that Centracath IV in question is an intravenous camla and Tubing for long term use". After noticing the definition of the words "cannulae" and Catheter", the Tribunal held in favour of the Assessee and applied Notification 208/81 and exempted the goods from customs duty.
The next decision is 1989 (19) ECC 187 ) dated 23-5-1988 rendered by the Tribunal. The goods in this case were described as "Hakko Brand Intravenous Canulae and Tubing for long term use-Infusion set." But on examination the Revenue found the goods were only "Scalp Vein sets". In this case also a certificate of the Deputy Chief Controller of Imports and Exports dated 11.3.1986 was produced to suggest that Scalp Vein Sets are covered under Notification No. 208/81. Reliance was also placed on the addition made by Notification No. 367/86 dated 24-6-1986 inserting the following words:
Butterfly Needle G - Infusion set under Item 44 of Schedule-B.
Accepting the argument of the Assessee that ''Infusion Set'' is also known as Scalp Vein Set, the Tribunal extended the benefit of Notification No. 208/81. However, the Tribunal did not decide whether the question whether the goods also fall under Item 44 after the amendment made by notification No. 367/86. The same view was taken by the Tribunal on 29.6.1988, expressing their decision in the following words:
Under these circumstances when imported goods namely, scalp vein sets'' are considered as ''Intravenous Canulae and Tubing for long term use'' for ITC purposes as per the clarification given by the licensing authorities, we think that the benefit of the said Notification under its Sr. No. 19 of Schedule B were not denied to the Appellants.
On 12.12.1988 the Tribunal had taken the very same view following the earlier orders. The following sentence in the said Tribunal''s order is relied on by the Petitioners:
If anyone were to ask whether scalp vein sets and intravenous canula for long term use could be used for the same purpose or would serve the same need, the answer would certainly be in the affirmative.
All the above decisions of the Tribunal were rendered prior to the Notification 65/88 in and by which Infusion Sets were charged customs duty at 40 per cent ad valorem. The Collector of Customs and Central Excise (Appeals) had to deal with the case after the said Notification on 11.10.1990. The Collector was dealing with Top brand scalp Vein Sets. The Collector directly considered the question whether the infusion sets being specifically covered by Notification No. 65/88, whether the importer could claim exemption under Notification No. 208/81. Relying on the Tribunal''s judgment in 1989 (19) ECC 187 wherein it was held that Scalp Vein sets are nothing but Intravenous Canulae and Tubing for long term use. The Collector extended the benefit of Notification No. 208/81. The Collector had also the benefit of the oral explanation tendered by one Dr. Lakshmi Narayanan. The Doctor had explained that Scalp Vein Sets are used in conjunction with infusion of saline or it can be used for injection where the needle can be inserted and held firmly on the person of the patient with the help of plaster for repeated use thereby dispensing with need for pricking the patient''s vein each time, any fluid to be administered. The Doctor also explained that the name"Scalp Vein Sets" came into being because originally they were meant for infusing into the vein of a scalp of a child since locating vein elsewhere in a new born baby is relatively more difficult. He is also clarified that the Scalp Vein Set was not an Infusion-Set by itself. Therefore, the Collector followed the judgment of the Tribunal in 1989 (19) ECC 187 , extended the benefits of Notification No. 208/81 to the said importer.
Now we have to deal with the judgment of the Calcutta High Court in Trio Marketing Pvt. Limited Vs. Union of India (UOI), . This judgment was rendered on 14.2.1991. The Revenue is strongly relying on this judgment for more than one reason. It is the judgment of the High Court and has great persuasive value and should be preferred to the orders of the Tribunals and the Collector (Appeals). Secondly, it is a judgment rendered after the Notification No. 65/88 dated 1.3.1988. Thirdly, it has touched all the aspects of the case and has brought out the difference between the Scalp Vein Set and the Intravenous Canulae and tubing for long term use. There is one passage in this judgment which the Learned Counsel for the Petitioners strongly relies on. It is not an expression of opinion by Court but it is only an extract from the British Encyclopaedia and Medical Practice, All the same reliance is placed on this passage by the Petitioners to suggest that both the items are for the same purpose and Scalp Vein Set is used on patients with poor veins. The passage is as follows:
The M.R.C. apparatus works admirably in all cases in which there are good veins, namely these in which a sufficiently large needle can conveniently be inserted and the gravity pressure alone therefore is able to keep up a steady flow of blood.
Nevertheless, all these gravity methods have one weakness. The veins may be too small or too collapsed to accommodate a sufficiently wide bore needle. Then the veins must either be cut down upon and a cannula tied-in (Fig.111) or some form of "Positive Pressure" employed to drive the blood through the smaller needle. For patients with poor veins who require prolonged drip transfusions it is probably best always to employ the tied-in cannula, the minor surgical techniques for which is described in all standard work. The advantages arising from the avoidance of scars and sepsis, however, make it worthwhile to adopt simple needle transfusion whenever possible.
(M.R.C. stands for Medical Research Council)
Even here, there is reference to the employment of a "tie-in canula" for patients who require prolonged drip transfusions. In the following passage the Calcutta High Court has, well and truly, brought out the difference between the two items:
Reading the two meanings together ''intravenous canula'' must mean a tube which is inserted in the vein. From the illustrations in the various manuals relied upon by the Respondents it appears that all intravenous canulae infusions sets have a small plastic tube round the needle. The sample intravenous canula set produced by the Respondents also showed that apart from the plastic sheet covering the needle, the needle itself was encased in a thin catheter like plastic tube. The method of insertion of this plastic catheter has been shown in the various manuals and indicated by KNOTT in his article on Blood Transfusion in the British Encyclopaedia and Medical Practice referred to earlier. The canula is left inside the vein for prolonged transfusion as mentioned by KNOTT. On a common sense view also, it appears that the use of the canulae for prolonged infusion would obviate the possibility of internal damage by allowing a needle to remain without any protective covering in the vein. From the samples produced as well as in the description of scalp vein sets it appears that there is no catheter-like tube canula found the needle. What is inserted and kept in the vein is the needle itself and not any tube. It is also found that the two types of infusion sets are separately itemised in the manuals referred to by the Respondents.
With respect I entirely agree with the views expressed by the Calcutta High Court. The Intravenous Canulae and Tubing for long term use and the Scalp Vein Set have also been produced before me. As rightly pointed out by the Calcutta High Court, in the I.V. Canula, the needle is encased in a thin catheter like plastic tube. The canula is left inside the vein for prolonged transfusion. It does not mean that the canula can remain in the veins for several days. It may be for a few days. On the other hand, the Scalp Vein Set has a metaic needle with a butterfly like plastic attachment to the needle, plus a tube, meant for suction or transfusion. Once the needle is withdrawn from the vein it cannot certainly be used agaia Wheras in the case of I.V. Canulae even if the needle is withdrawn the catheter like plastic tube will remain in the vein. In the New Webster''s Medical Dictionary ''Canula" is defined as "A tube used for insertion into a duct or cavity for the purpose of withdrawing fluid or injecting medication into the body." The word ''infusion'' is defined as "introduction of a solution into a vein."
The above discussion leads me to the conclusion that both are infusion-sets. While the I,V. Canulae and Tubing for long term use is a specialised item for prolonged drip transfusions, the Scalp Vein Set cannot be so used, if the Scalp Vein Set has to be used for prolonged drip transfusion "tie-in canula" procedure as adverted to by the Medical Research Council of Great Britain should be adopted.
In conclusion, I must say if an infusion set answers the description of Intravenous canulae and Tubing for Long term use, it will get the benefit of Notification No. 208. In this connection, withdrawal of the words "Butterfly Needle G Infusion Sets" from item 40 of the ''B'' Schedule, to the Notification No. 208/81 is also significant. This was done by Notification No. 46/89 dated 1.3.1989. The opinions from two Doctors working in the Apollo Hospital, Madras and Dr. Ram Manohar Lohia Hospital, New Delhi, respectively have been produced in support of the Petitioner''s case. They are of general nature and do not bring out the distinction between the two items to which I have made a reference already. They do not therefore, advance the case of the Petitioners. Therefore by no stretch of imagination can the Scalp Vein Sets imported by the Petitioners get the benefit of Notification No. 208/81. Once they do not get the benefit of the said Notification, they will have to be deemed to be "Infusion Sets" under Notification No. 65/88 and subjected to 40 per cent customs duty ad valorem.
The writ petitions, therefore, fail and they are accordingly dismissed. There will, however, be no order as to costs.