Breast Pump Is Not A Medical Device, Classifiable Under CTH 39269090: CESTAT

The Delhi Bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has held that breast pumps have nothing to do with any medical or surgical procedures and are not used by any medical practitioner.

The two-member bench of Binu Tamta (Judicial Member) and P V Subba Rao (Technical Member) has observed that the manual breast pumps are classifiable under CTH 39269090.

The appellant/assessee filed a Bill of Entry for the import of 3040 pieces of "Manual Breast Pump, Electric Breast Pump, and Conduit Connector Cover for medical use". During the assessment, a catalog was called for, and as the goods were found to be manual breast pumps, the department felt that the goods were appropriately classifiable under CTH 3926 instead of 9018.

The appellant contended that the product, a manual breast pump, has been classified under Chapter 39269099 in the category of other articles of plastic, though it ought to have been classified under 9018. To justify the classification under 9018, the appellant referred to the actual utility, purposes, and various benefits of using the manual breast pump. The Government of India runs special programs to promote breastfeeding (mothers' absolute affection) MAA and the United States Food and Drug Administration and several other countries describe the breast pump as a medical device.

The appellant also claimed that they have registered a manual breast pump as a medical device under the Central Drug Standard Control Organization, governed by the Ministry of Health, Government of India.

The department contended that the goods are merely devices for the convenience of lactating women and are not instruments to be used in medical science. Neither a medical prescription is required nor has the appellant obtained any NOC from the Drugs Controller under the Drugs and Cosmetics Act. The HSN Notes and Chapter Notes 1 (b) and (g) of CTH 90 expressly exclude similar medical apparatus.

The heading of Chapter 9018 provides instruments and appliances used in medical, surgical, dental, or veterinary sciences, including scientigraphic apparatus, other electro-medical apparatus, and sight testing instruments. The breast pump does not fall into any of the categories under the chapter heading. They are not used to perform any specialized surgical procedure, nor are they used by any medical practitioner. They are simple devices for self-use to facilitate the lactating mothers discharge of breast milk at their convenience. The goods do not require any medical supervision and are available on the market without any prescription. The heading covers a very wide range of instruments and appliances that, in the vast majority of cases, are used only in professional practice either to make a diagnosis, prevent or treat an illness, operate, etc.

On the other hand, chapter heading 3926 provides other articles of plastic and other articles of other materials. This heading covers articles not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of heading 39.01 to 39.14.

The issue raised was in respect of the classification of the product, "Manual Breast Pump."

The Tribunal held that there is no quarrel with the principle that most specific entries prevail over general entries; however, there is no specific entry for a manual breast pump. The product is made of plastic and is a commonly usable item.

The tribunal noted that breast pumps are only a facilitating device for self-use by lactating mothers.

Case Title: M/S Mehar Healthcare Corporation Versus Commissioner, Customs-New Delhi

Citation: Customs Appeal No. 50008 Of 2020

Date: 24/03/2023

Counsel For Appellant: Vaibhav Singh

Counsel For Respondent: Rajesh Kumar

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