M.S.SHAH - (1.) In this petition under Article 226 of the Constitution, the petitioner who had imported Scalp Vein sets from Japan at the Kandla Port in March/April, 1986 has challenged five show cause notices dated 6.9.1986 and the five consequential orders dated 6.3.1987 passed by the Deputy Collector of Customs, Kandla (and also the detention order dated 10.3.1987 passed by the Assistant Collector of Customs, Kandla) whereby the respondent authorities held that the Scalp Vein sets imported by the petitioner were not Intravenous Canulae and Tubing for long term use as per entry No. 19 in Schedule B of the Customs Tariff Act, 1975.
(2.) The controversy arising in this petition is whether Scale Vein sets imported by the petitioner were covered by the aforesaid entry No. 19 of the Schedule B of the Customs Tariff Act, 1975 which read as under :- "Intravenous Canulae and tubing for long term use." The case of the petitioner is that in Appendix 6 of the Export and Import Policy for the year 1985-88 covering the period in question also there was an identical entry being item No. 21 reading as under :- "Intravenous canulae and tubing (for long term use). and that the Chief Controller of Imports and Exports had in his letter dated 11.3.1986 (Annexure "J") held that "import of infusion sets ... ... butterfly needles for intravenous infusion ... ... is covered under entry No. 21 of List 2 of Appendix 6 of the Import and Export Policy, 1985-88 (Vol. 1)". Reliance is also placed on the certificate dated 16.1.1987 of the Assistant Director General (Medical), New Delhi stating that Scalp Vein set is eligible to be considered as Intravenous Canula and Tubing for long term use. Reliance is place placed on the literature of manufacturer Hakko Shoji Co. Ltd. of Japan and their certificate dated 2.10.1985 (Annexure "X") that Hakko Brand Scalp Vein set and Hakko Brand Winged Infusion set are meant for long term intravenous infusion of fluids and liquid medicines and maximum indwelling duration can be used for 2-3 days at a time. The petitioner has also relied upon the certificate issued by Surgeons and Physicians of Calcutta and Bombay that Scale Vein set is an intravenous Canula which can be kept in a vien and used for a long time to administer medicines or fluids.
(3.) At the hearing of this petition, apart from relying on the aforesaid material, the learned counsel for the petitioner has also relied on the decision of the Madras High Court in Unival Surgical Traders vs. Union of India, 1999 (114) ELT 811 holding that Scalp Vein sets are nothing but Intravenous Canulae and Tubing for long term use and eligible to the benefits of importation under OGL and also for duty exemption under Notification No. 208/81. The learned counsel for the petitioner has also relied on the decision of the New Delhi Bench of the CEGAT in Life Line Surgical Traders vs. Collector of Customs, 1988(33) ELT 699 and of the Madras Bench of the CEGAT in Unival Surgical Traders vs. Collector, 1988 (37) ELT 58.;