2005(03)LCX0219

IN THE CESTAT, SOUTH ZONAL BENCH, BANGALORE

Dr. S.L. Peeran, Member (J) and Shri T .K. Jayaraman, Member (T)

VDO INDIA LTD.

Versus

COMMISSIONER OF CUSTOMS, CHENNAI

Final Order Nos. 468-469/2005, dated 29-3-2005 in Appeal Nos. C/14 & 72/2002

CASES QUOTED

Asia Engineering Co. v. Collector-1996(11)LCX0062 Eq 1997 (092) ELT 0066 (Tribunal) - Referred...........................[Para 4]

Advocated By : Shri B.N. Gururaj, Advocate, for the Appellant.

Smt. Shoba L. Chari, JCDR, for the Respondent.

[Order per: T.K. Jayaraman, Member (T)]. - The appeals have been filed against OIA dated 27-11-01 passed by the Commissioner of Customs (Appeals), Chennai. One of the appellants is Revenue. The issue involved is correct classification of Climate Test Cabinet System imported by M/s VDO India Ltd., Bangalore.
2. The Commissioner (Appeals) in the impugned Order has classified the item under sub-heading 9031.80. M/s. VDO contends that the goods are rightly classifiable under 9027.80. However, the revenue contends that the equipment does not facilitate to read the test results or measure parameters and hence it is not a testing equipment. According to the Revenue, the equipment imported being electrical one having an individual function of creating a climate of user defined parameters, the goods are rightly classifiable under sub-heading 8543.89 of the Customs Tariff.
3. Shri B.N. Gururaj, learned Advocate appeared for the appellants and Smt. Shoba L. Chari learned JCDR appeared for the Revenue.
4. The learned Advocate contended that the item imported creates different climatic conditions. The dash board instruments manufactured by M/s. VDO (I) Ltd., can be kept in the equipment to test whether the products withstand different temperature conditions. He relied on the following case law:
(1) Asia Engineering Co. v. C.C., Bombay [1996(11)LCX0062 Eq 1997 (092) ELT 0066 (Tri.)] Wherein it was held that smoke detectors, a complete instruments for detecting smoke levels would be classifiable under sub-heading 9027.80 and not under sub-heading 8531.10. The learned JCDR submitted that sub-heading 9027 refers only to various instruments and apparatus which measure certain parameters like vjscosity, porosity, expansion, surface tension etc. In the instant case, the apparatus only simulates certain climatic conditions. By no stretch of imagination it can be called an instrument or apparatus for physical or chemical analysis covered by SH 9027. Further she said that there is a contradiction in the Commissioner (Appeals) Order. After saying that the impugned goods do not check or measure any parameters, he has classified the same under CH 90.31 which covers measuring or checking instruments appliances and machine not specified or included elsewhere.
5. We have gone through rival contentions. We reproduce SH 9027 herein below:
"Instruments and apparatus for Physical or Chemical Analysis (for example polarimeters, refractrometers, spectrometers and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); microtomes."
No doubt the apparatus or instruments indicated in CH 9027 measure certain parameters. As per HSN Explanatory Notes, even electronic smoke detectors and fire damp detectors etc., are classifiable under this- heading. In those cases also there may not be the measurement of any parameter. In the present case, the equipment is used to test the function of the products manufactured by VDO during temperature variations. At certain temperatures, the products may not function and even may break down. This can be seen visually. A perusal of the technical literature indicates that the equipment can be adjusted for different temperatures. In fact the temperature range is from -70°C to 130°C. It would definitely be possible to find out at what temperature the material breaks down. Hence in our view, this is an apparatus for physical analysis and it would definitely indicate the temperature at which the product breaks down. Otherwise, the climate test cabinet system will have no use. Under these circumstances, the classification of item under 9027.80 appears to be correct. The insistence that apparatus should measure some parameters is not a proper ground to reject the classification under 9027.80. Revenue's contention that the item being an electrical one should be classified under 8543.89 does not appear to be correct. In view of our above findings, we allow the appeal of M/s. VDO and reject the Revenue's appeal.
(Pronounced in open Court on 1-4-2005)

Equivalent 2005 (186) ELT 408 (Tri. – Bang.)