1. In this case, the respondent, Dr. Tanna, imported a consign ment of bone cement (Simplex RO). The goods were assessed @ 120% +20% AD+-40 % CVD as a Polymer under heading 39.01/06 of the Customs Tariff Act, 1975. Dr. Tanna did not agree to the assessment and filed a refund claim. The said claim was rejected by the Assistant Collector on the ground that the importer had not specified any heading under which refund was claimed. Dr. Tanna, thereafter, filed an appeal before the Appellate Collector. The Appellate Collector allowed the appeal and passed order for reassessment of the goods as medical appliances under heading 90.19 CTA which carried the lower rate of duty of 40%+ 5% AD.The Central Government felt that the order-in-appeal passed by the Appellate Collector was not maintainable in law and accordingly issued the subject Show Cause Notice under the then Section 131(3) of the Customs Act, 1962 proposing to re-assess the goods under heading 30.04/05 CTA. When no reply to the Show Cause Notice was received from Dr. Tanna for a long time, he was reminded by the Government on 25-7-1981. He replied to the reminder saying that by delaying payment of the refund to him gross injustice was done to him and that the Custom House had pushed the file to the Central Government inspite of the time bar as the order-in-appeal was communicated on 27-2-79 while the Show Cause Notice had reportedly been issued on 2-8-1980. Dr. Tanna was heard personally also by the Central Government on 12-4-1982. He stated during this hearing that he had not received the Show Cause Notice dated 2-8-1980. He added that some other party had cleared identical goods at lower rates of duty and in support of his contention he produced a copy of the Bill of Entry. The Central Government thereupon ordered that a copy of the Show Cause Notice be first supplied to Dr. Tanna. This was done on 2-9-1982. The proceedings were thereafter transferred to this Tribunal and have been taken up as the subject deemed appeal.
2. Hearing of the case was fixed before this Bench on 31-5-1983 and a notice thereof was sent to Dr. Tanna by Registered Post AD on 8-4-1983.
Dr. Tanna did not make an appearance during the hearing on 31-5-1983.
At the request of the Department's Representative, the hearing was adjourned to 20-6-1983 in order to enable him to produce evidence regarding the plea of time bar contained in Dr. Tanna's written reply.
Dr. Tanna was not present ven today for the hearing. The case was, therefore, taken up on merits in the ight of his written reply and oral plea during the personal hearing before the Central Government. The Department's Representative relied on the Supreme Court's judgment in the case of Geep Flashlight Industries (AIR 1977 SC 456) to say that since this was a case of erroneous refund ordered by the Appellate Collector, the time limit of 1 year/6 months laid down in the erstwhile Sub-sections (4) and (5) of Section 131 of the Customs Act, 1962 did not apply. Regarding merits of the case, he stated that bone cement imported by Dr. Tanna was akin to dental cement which was classifiable under heading 30.04/05 CTA and this was now the practice of the Department also.
3. We have carefully considered the matter. In view of the Supreme Court judgement cited by the Department's Representative, we hold that the Show Cause Notice dated 2-8-1980 issued by the Central Government was not time barred. Regarding the merits of the case, we find that the bone cement imported by Dr. Tanna was a dual polymer formulation of rigid quality standards required for use in the human body. We hold, therefore, that it could not be regarded as a synthetic resin or plastic material of heading 39 CTA. At the same time, it was also not a medical appliance like plates, nails etc., which were inserted inside the human body to hold together two parts of a broken bone or for similar treatment of fractures. The classification of bone cement as a medical appliance under heading 90.19 CTA as ordered by the Appellate Collector was also, therefore, not correct. We hold that bone cement, being akin to dental cement falling under the heading 30.04/05, was correctly classifiable under the same heading. Accordingly we set aside the impugned order-in-appeal and order that the subject bone cement shall be re-assessed under heading 30.04/05 CTA and consequential refund of the customs duties shall be granted to the respondent.