(Judgment of the Court was delivered by S.J.MUKHOPADHAYA, J.) The appellant/writ petitioner (hereinafter referred to as "the petitioner") asked for total exemption of customs duty with regard to the specified medical equipment viz., 'Infusion sets' in terms of the Notification No.208-Cus., dated 22nd September, 1981 having been not granted the benefit, the writ petition in W.P.No.4834 of 1989 was preferred. The learned single Judge, by the judgment dated 25th November, 1998, having noticed that the total exemption was granted for Intravenous Canulae and Tubing for long term use and not for infusion sets, held that the infusion sets is not intravenous canulae and tubing for long term use and thereby the petitioner is not entitled for the benefit as sought for under Notification No.208 dated 22nd September, 1981.
2. The case was argued on merits and at the time of arguments, the learned counsel appearing on behalf of the petitioner brought to the notice of the Court a separate Notification No.65/88-Cus., dated 1st March, 1988 as amended by Notification No.143/88-Cus., dated 27th April, 1988; No.178/88-Cus., dated 20th May, 1988; No.15/89-Cus., dated 1st February, 1989 and No.96/89-Cus., dated 1st March, 1989. In exercise of the powers conferred by sub-section (1) of
Section 25 of the Customs Act, 1962, the Central Government has provided certain benefit by exempting the medical equipments including infusion sets (at Sl.No.149), if imported into India, as follows:
(a) so much of that portion of the duty of customs leviable thereon which is specified in the said First Schedule, as is in excess of the amount calculated at the rate of 40 percent ad valorem; and
(b) the whole of the additional duty of customs leviable thereon under
section 3 of the said Customs Tariff Act.
It was submitted that as per the said decision of the Central Government contained in Notification No.65/88-Cus., dated 1st March, 1988 and amended from time to time, the petitioner is entitled for exemption of duty in excess of 40% (exemption upto 60%) on infusion sets.
3. We have heard the learned counsel appearing on behalf of the parties and perused the records. As before the authority, the petitioner had not prayed for any exemption in terms of the Notification No.65/88-Cus., dated 1st March, 1988 nor such a relief was sought for before the learned single Judge, this Court is not inclined to deliberate into the issue at the appellate stage. It is in this background the learned counsel appearing on behalf of the petitioner sought permission to withdraw the writ appeal to enable the petitioner to ask for the benefit of exemption in terms of the Notification No.65/88-Cus., dated 1st March, 1988 as amended from time to time.
4. The learned counsel appearing on behalf of the respondent has no objection and submits that if the matter is remitted, the authority may decide the claim. In these facts and circumstances, we allow the petitioner to withdraw the writ appeal to enable it to prefer an application before the competent authority for exemption of specified medical equipment (infusion sets) in terms of the Notification No.65/88-Cus., dated 1st March, 1988. If such an application is filed, the authority will decide the same on merits, without being influenced by the order passed by the learned single Judge, which has not decided the question of exemption under Notification No.65/88-Cus., dated 1st March, 1988 preferably within three months from the date of receipt of such application. We may mention that we have allowed the petitioner to claim the benefit as there is no laches on its part and the petitioner was pursuing the benefit of total exemption of customs duty under a different Notification No.208-Cus., dated 22nd September, 1981.
5. The writ appeal stands disposed of with the aforesaid observation, but there shall be no order as to costs.
ss To The Assistant Collector of Customs Custom House Chennai 600 001