“ DANGER – DO NOT use this warming appliance in the presence of flammable anesthetic mixture (with air or with oxygen or nitrous oxide). THIS COULD RISK AN EXPLOSION” 17. The manufacturer also produces another product called the ivNow which is a modular intravenous fluid warmer. It can be placed on countertops, mounted to the wall or attached to mobile equipment or pole stands. It holds between 1-3 litre bags of fluid. This appeal does not relate to this product, although the product was referred to in the evidence and in submissions. 18. The manufacturer operates to ISO standards for the “design, engineer, manufacture, servicing and market of warming equipment for the medical device industry”
“ These units typically consist of a cabinet with appropriate racks, a heating system, temperature controls, and overheat alarms. Multipurpose warming units may be used to warm solutions … and blankets. ” 19. It is not suggested that the warming cabinets have any intended use other than in a medical context and I so find. The products themselves do not come into direct contact with patients. 20. The USA manufacturer obtained a BTI for the warming cabinets from HMRC on14 December 2006 . The products were classified to heading 9402, which may be described in shorthand as “medical furniture”
“This heading covers a very wide range of instruments and appliances which, in the vast majority of cases, are used only in professional practice (e.g., by doctors, surgeons, dentists, veterinary surgeons, midwives), either to make a diagnosis, to prevent or treat an illness or to operate, etc. Instruments and appliances for anatomical or autoptic work, dissection, etc., are also included, as are, under certain conditions, instruments and appliances for dental laboratories (see Part (Ⅱ) below). The instruments of the heading may be made of any material (including precious metals). The heading does not cover: … (r) Medical or surgical furniture, including that for veterinary use (operating tables, examination tables, hospital beds), dentists chairs not incorporating dental appliances of this heading, etc. (heading 94.02). …” 29. The Notes go on to identify a large number of specific instruments and appliances which do fall within the heading. Ms Powell submitted that the common characteristic of all the specifically identified instruments and appliances is that they are “used” in medical science, in the sense that they are applied directly to the patient. In other words, the heading is limited to instruments and appliances used directly in the course of some form of medical procedure. She submitted that the warming cabinets could not be described as being “used” in that sense. 30. I note the specific exclusion at paragraph (r) for medical furniture. The HSEN expressly states that medical or surgical furniture is not covered by the heading, but falls within heading 9402. It may be argued therefore that but for this exclusion, medical or surgical furniture at least might be considered to fall within heading 9018. That would suggest that the respondents’ construction of the heading requiring appliances to have direct contact with a patient was unduly narrow. 31. Ms Powell referred me to the decision of the CJEU in ' Oliver Medical' SIA v Valsts ieņēmumu dienests (Case C-547/13 ) which was a classification case also involving heading 9018. It concerned certain laser devices and accessories used for dermatological treatments, and one issue was whether they were intended for medical use. The CJEU noted Council Directive 93/42/EEC which made provision for medical devices, as a general rule, to bear the CE mark indicating conformity with the provisions of that Directive. The Directive contained a definition of “medical devices” for that purpose as follows: “‘medical device’ means any instrument, apparatus, appliance, software, material or other article, whether used alone or in combi-nation, including the software intended by its manufacturer to be used specifically for diagnostic and/or therapeutic purposes and necessary for its proper application, intended by the manufacturer to be used for human beings for the purpose of: - diagnosis, prevention, monitoring, treatment or alleviation of disease, - diagnosis, monitoring, treatment, alleviation of or compensation for an injury or handicap, - investigation, replacement or modification of the anatomy or of a physiological process, - control of conception, and which does not achieve its principal intended action in or on the human body by pharmacological, immunological or metabolic means, but which may be assisted in its function by such means;” 32. The CJEU considered whether the products were intended for medical use. As to the significance of a CE mark it stated as follows: “53. The fact that a product bears a CE mark certifying the conformity of a medical device with the provisions of Directive 93/42 constitutes one factor among others to be taken into consideration in that regard. None the less, since Directive 93/42 pursues objectives different from those of the CN and in order to maintain the coherence between the interpretation of the CN and that of the HS, which is established by an international convention to which the European Union is a contracting party, the fact that a product bears a CE mark cannot be decisive as regards an assessment of whether it is intended for medical use within the meaning of heading 9018 of the CN.” 33. The warming cabinets have a CE mark pursuant to Directive 93/42 which identifies them as medical devices for the purposes of that Directive. It is not decisive for the purposes of classification under heading 9018. In any event it is not in dispute that the warming cabinets are medical devices for those purposes or that their intended use established by their objective characteristics is in a medical context. In the circumstances I do not consider that the existence of a CE mark or indeed the judgment of the CJEU assists in relation to the classification issue in this case. 34. Taking into account the terms of the heading, and the terms of the HSEN as a whole, on balance I am satisfied that the word “used” as it appears in the heading is to be narrowly construed as the respondents submit. It follows that an appliance which is not used directly for some form of medical procedure does not fall within this heading. 35. Certain types of medical furniture such as operating tables and examination tables would fall within the heading because they come into direct contact with patients during medical procedures. However, they are specifically excluded by paragraph (r) of the HSEN. 36. I am satisfied therefore that the warming cabinets do not fall within the terms of heading 9108, even though their intended use is in a medical context. Even if they were prima facie included, for the reasons which follow they are medical furniture and would be expressly excluded. 37. Heading 9402 covers “medical … furniture”
“(11) Small tables, table-cupboards and the like, whether or not on wheels (trolleys), of a type specially designed for instruments or bandages, medical or surgical supplies or anaesthetic equipment; instrument sterilising trolleys; special disinfection wash-basins, self-opening sterile dressing boxes (generally on wheels) and waste bins for soiled dressings (whether or not on wheels); bottle-holders, irrigator or douche carriers and the like, whether or not on pivoting castors; special instrument or dressing cabinets and cases.” 38. The Notes go on to state: “ It should be noted that this group is restricted to furniture of a type specially designed for medical, surgical, dental or veterinary use; furniture for general use not having such characteristics is therefore excluded.” 39. It is not disputed that the warming cabinets are specially designed for medical use. However, the respondents say that the heating functions of the products give the products their fundamental characteristic. In other words, they are heating devices, rather than items of furniture. In support of that submission the respondents rely on the nature of the products themselves and also the warning in the operation manual, not to use the warming cabinets in the presence of flammable anaesthetic mixture. The respondents say that furniture is “inanimate” in the sense that it does not react with its surroundings and can be placed wherever it is needed. I am not sure that is an appropriate word to describe furniture in this context, but in any event the respondents say that the heating function of the warming cabinets causes them to lose their character as simple cabinet furniture. 40. By way of comparison Ms Powell referred me to heading 8516 which covers various electric heating appliances such as water heaters, space heaters, hair dryers and “other electro-thermic appliances”
“ With these exceptions, the heading covers machinery and plant designed to submit materials (solid, liquid or gaseous) to a heating or cooling process in order to cause a simple change of temperature, or to cause a transformation of the materials resulting principally from the temperature change (e.g., heating, cooking, roasting, distilling, rectifying, sterilising, pasteurising, steaming, drying, evaporating, vaporising, condensing or cooling processes). But the heading excludes machinery and plant in which the heating or cooling, even if essential, is merely a secondary function designed to facilitate the main mechanical function of the machine or plant, e.g., machines for coating biscuits, etc., with chocolate, and conches (heading 84.38), washing machines (heading 84.50 or 84.51), machines for spreading and tamping bituminous road‑surfacing materials (heading 84.79). … The heading includes a very wide range of machinery and plant of the types described below. (Ⅰ) HEATING OR COOLING PLANT AND MACHINERY This group covers plant of general use in many industries for the simple treatment of materials by heating, boiling, cooking, concentration, evaporation, vaporisation, cooling, etc. They include: (A) … (B) … The following are examples of machinery and plant which, subject to the provisions referred to above, are covered by Part (Ⅰ) of this Explanatory Note: (1) … (17) Specialised heating or cooking apparatus which are not normally used in the household (e.g., counter-type coffee percolators, tea or milk urns, steam kettles, etc., used in restaurants, canteens, etc.; steam-heated cookers, hot-plates, warming cupboards , drying cabinets, etc.; deep-fat friers).”