Full Judgment
Clearance of the goods was claimed in bill of entry under serial No. 7 list 2 of Appendix 6 of the Import Policy. The department was of the view that the goods imported by the importer did not contain a cardiograph and hence were not covered by the OGL entry. It was also of the view that the goods could not be entitled to duty free importation under Notification 208/81 which was claimed for the reason that the goods did not conform to the description of the goods in serial No. 6 of list B of the schedule to the Notification. The department therefore proposed confiscation of the goods for unauthorised import and misdeclaration and denial of the notification. After hearing the importer and considering the submissions made the Additional Collector denied the benefit of OGL and confiscated the goods both under Sub-sections (d) and (m) of Section 112. He denied the benefit of the notification. Hence the appeal.
3. It is the contention of the appellant that ECG monitor is nothing but a cardiograph. Goulds Medical Dictionary Third Edition defines cardioscope as "an instrument for the examination or visualisation of the interior of the cardiac chambers". The second meaning is "an instrument which by means of a cathode ray oscillograph projects an electro cardiographic recording on a luminous screen." From the pamphlet it is seen that it contains a video displaying screen. In our opinion therefore the monitor is nothing more than a cardioscope and therefore the OGL benefit is available.
4. It is a different matter with regard to the benefit of the notification.
D.C. Defibrillators for internal and external use and Pace Makers and their accessories including patient cable, internal Defibrillators Paddles 45 mm and 55 mm sizes but excluding :- It is contended by the appellant that the exclusion clause would apply when the goods specified but are imported separately and would not apply when they are built. It is difficult to accept this proposition.
Nobody can dispute that a cable by which the defibrillator is connected to the paddles (by which the electric energy is supplied to the patient's chest in order to defibrillate the heat) are essential components of the defibrillator and it cannot function without them.
However, the notification specifically includes paddles and cable. The exclusion clause has to be seen in the light of this notification. It would follow therefore that the intention in the notification was to allow the bare minimum required of the defibrillator plus the patient cable and paddles of specific sizes and no more. The matter is of course not entirely free from doubt but even where there is doubt and exemption notification has to be construed in favour of the revenue. In this view of the matter we have to hold that the benefit of the exemption will not be available to the goods.
6. The Departmental Representative sought to contend that there was deliberate misdeclaration in that bill of entry separately showed defibrillator and cardioscope. The photocopy of the original bill of entry shows the word "wilth" written in hand between the two main descriptions of the goods imported although it is not possible to say whether this addition was because of a defect in photocopy or because the word was not written on it. Whatever that may be, it is not possible for us to say that the bill of entry in the manner it was filed did not contain the word. Now when the importer says that he has imported defibrillator wilth with cardioscope it is difficult to accept that he has said that he imported two specific items. It is possible that the importer intended to declare the goods as separate units but better sense prevailed and the word was added in between. In the facts and circumstances of this case it is not possible for us to say that there has been any misdeclaration. Confiscation of the goods on this score is set aside.
7. Appeal allowed to the extent that confiscation of the goods is set aside as well as the penalty imposed on the appellant but otherwise rejected.