ORDER
1. In these two petitions, the question is whether Foley Balloon Catheters are suction catheters and are, therefore, covered by Serial No. 32 of a notification which grants total exemption from the customs duty. This question had arisen earlier and the matter was considered by the Customs, Excise and Gold (Control) Appellate Tribunal, hereinafter referred to as “the CEGAT”, in P.R. Parekh v. Collector of Customs, Bombay (Appeal No. CD(SS) A. No. 437/84-C) and by a judgment dated 29th of June 1984, the Tribunal held that Foley Balloon Catheters are covered by the expression “suction catheters” and are, therefore, eligible for duty exemption as per the notification referred to above. There are in fact two notifications. One is Notification No. 208/81 dated 22nd of September 1981 and another is Notification No. 265/82 dated 30th of November 1982. While so holding, the CEGAT took into account the opinion given by the Director General of Health Services. The opinions of other persons who could speak with some authority on the subject were also before the CEGAT when it passed the said order. This view of the CEGAT was followed by the Tribunal in another case between the same parties by an order passed on 17th of June, 1985.
2. However, even after the CEGAT had expressed its opinion, the Assistant Collectors of Customs in Bombay seen to have insisted on net treating the Foley Balloon Catheters as suction catheters. Hence, several parties came to this Court and orders have been passed requiring the Assistant Collector to treat the Foley Balloon Catheters as being exempted.
3. Subsequently, the Collector of Customs by his order No. S/10-49/88(5B) dated 11th of March 1988 again took the view that the Foley Balloon Catheters were not suction catheters. He took this view because, according to him, after the decisions of the CEGAT referred to above, fresh material had come to his notice. In particular, he noticed that the Director General of Health Services had revised his opinion. This view of the Collector of Customs was challenged in Writ Petition No. 1108 of 1988. Bharucha, J. passed the following order on 20th of April 1988 while dismissing the said writ petition :-
“This is a matter which must go to CEGAT so that it may consider the revised opinion of D.G.H.S. mentioned in the impugned order.”
This order of Bharucha, J. was confirmed by the Appeal Bench (Lentin and Suresh, JJ.) in Appeal No. 610 of 1988 by its order passed on 29th of April, 1988.
4. In these two writ petitions again the view that is being taken by the customs authorities of not treating the Foley Balloon Catheters as suction catheters is challenged. Mr. Sethna, the learned Advocate appearing for the customs authorities, contends that in view of the order passed by Bharucha, J. in Writ Petition No. 1108 of 1988, which is confirmed by the Appellate Bench, one must proceed on the basis that the view expressed by CEGAT in its order dated 29th of June, 1984 is no longer good law. If the petitioner are aggrieved by the view taken by the Customs authorities, their remedy is to prefer an appeal to the Tribunal. They cannot invoke the jurisdiction of this Court under Article 226 of the Constitution of India.
5. I am reluctant to accept this submission of Mr. Sethna for two reasons. The first is that subsequent to the order of Bharucha, J., this Court has passed orders in several petitions obviously on the ground that the view of the CEGAT is still prevalent and has allowed the importers to clear their goods on giving only personal bonds. (See Order dated 27th of July 1988 in Writ Petition No. 1358 of 1988, Order dated 19th of September 1988 in Appeal No. 1076 of 1988 in Writ Petition No. 2422 of 1988, Order dated 22nd of November 1988 in Writ Petition No. 3496 of 1988 and Order dated 29th of September 1988 in Writ Petition No. 2718 of 1988).
6. Secondly, the question is whether the Collector of Customs can taken a view different to the Tribunal’s view on the ground that subsequent to the decision of the Tribunal the D.G.H.S. has given a revised opinion. Prima facie, in my opinion, the answer to this question is “no” because the view taken by the Tribunal is binding upon the Collector of Customs who cannot by purporting to rely upon a revised opinion of the D.G.H.S. set at nought a legal decision given by an authority to which the Collector is subject. This is especially so when the identity of a product is not different. For over three years the view of the CEGAT has prevailed. The product in question is used almost in all hospitals and for patients. It is not a normal commercial article. On the basis of a mere revised opinion, the Collector cannot take a view which is clean contrary to the legal opinion given by the CEGAT.
7. If there is any other way of getting the CEGAT review its order, the Customs Authorities may follow the same. If the department is aggrieved by the exemption which is held to be available by the CEGAT, action for excluding Foley Balloon Catheters from the exemption may be taken. At present, however, one must proceed on the basis that the view of the CEGAT, which is binding upon all the authorities below it, is in the field. Hence, rule in each of these two petitions, returnable on 19th of June 1989. Mr. Sethna waives service of notice. By way of interim relief, it is directed that the petitioners are allowed to clear goods covered by Bills of Entry in respect of Foley Balloon Catheters by furnishing I.T.C. bonds for full C.I.F. value and P.D. bonds without bank guarantee for the customs duty.