Vasta Marketing Versus Commissioner of Customs, Chennai>2009(12)LCX0005

2009(12)LCX0005

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, SOUTH ZONAL BENCH AT CHENNAI

Jyoti Balasundaram, Vice President and Dr. Chittaranjan Satapathy, Member (Technical)

M/S Vasta Marketing

Versus

Commissioner of Customs, Chennai

Final Order No. 1854/2009, dated 1-12-2009 in Appeal No. C/209/2003

Cases Quoted -

Bharat Forge & Press Industries (P) Ltd. v. Collector of Central Excise

1990(01)LCX0072 Eq 1990 (045) ELT 0525 (SC) (Mentioned)

Advocated By -

Sriprakash, Adv. For the Appellant C. Dhanasekaran, SDR For the Respondent

ORDER

Dr. Chittaranjan Satapathy, Member (Technical)

1. The Appellants have imported "Uni-Lite XCEL" claiming classification under CTH 9027.80 as an instrument for measuring quantity of light. The authorities below have classified the same under CTH 9031.80 as measuring or checking device not specified elsewhere.

2. Shri Sriprakash, learned Counsel appearing for the Appellants argues at length that the instrument in question uses the method of measuring the light for determining pollution content on work surfaces and in liquids. He states that the "Uni-Lite XCEL" is a luminometer which works in conjunction with Biotrace reagents. Biotrace reagents detect ATP (Adenosine Triphosphate) a chemical found in all cells including bacteria, yeast and mold. When the firefly enzyme luciferace, combines with ATP, light is emitted. The Biotrace system measures this light. The more contamination present, the more light emitted and the higher the readings. The swab is used on the surfaces, the cleanliness of which has to be measured. The swab is put in a "pen device" containing all the necessary reagents. The pen is thereafter inserted in the "Uni-Lite XCEL". The light emitted is measured by the instrument which is then converted to different readings indicating the cleanliness or contamination level, The instrument has an alphanumeric display which presents the results as "pass/caution/fail" response. It also presents the results in a clear chart format showing the actual measurement which is colour-coded green, amber, red for extra clarity. The learned Counsel refers to the Heading 90.27 and states that the same includes instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters) and hence, the impugned instrument which measures the light should be classified thereunder. He also refers to the Explanatory Notes to HSN and states that since refractometers are classified under the Heading 90.27 even though they determine purity of substance through determination of the refractive index. The impugned instrument should also be classified under the same Heading even though it measures cleanliness.

3. Heard the learned SDR Shri C. Dhanasekaran appearing for the Department. He states that the instrument under consideration is used to determine contamination of a work surface and liquid samples. It is not an instrument for measuring light which is done by luxmeters. It uses the method of measuring light to determine the contamination level in relative units but it is not a luxmeter. It actually measures ATP levels.

4. After hearing both sides and perusal of the case records, we find that the authorities below have examined the catalogue of the product in question which were submitted by the Appellants. The instrument in question is not a luxmeter and does not measure illumination nor gives the measurement in units of illumination which is luxmeter (1 lumin per sq. mt.).

5. On the other hand, it has a facility for accepting a pen like device which "contains reagents swab. The process employed is measurement of the light emitted when the firefly enzyme luciferace combines with ATP as stated in- the catalogue. The instrument basically measures the ATP level and the same is translated into relative numbers to indicate whether a surface or a liquid is contaminated and to what extent. The equipment is a hygiene testing instrument rather than luxmeter which measures illumination. Accordingly, we are of the view that the classification adopted by the Authorities below under Heading 9031.80 is appropriate for the instrument in question.

6. The learned Counsel has argued that refractometers are covered under Heading 90.27 and, therefore, the impugned instrument should also be classified under that heading. However, we find that Heading 90.27 has four parts each separated by semi colon, which reads as follows: 90.27

Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments 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

7. The light measuring instruments are specified in the third part which for the reason stated above does not include the impugned instrument as it is not light measuring equipment. The refractometers on the other hand are specifically included in the first part of the Heading 90.27 and hence inclusion of the same does not automatically require classification of the impugned instrument in the third part of the Heading.

8. The learned Counsel has also argued that under the residuary entry only such goods are to be covered which cannot be brought under the various specific entries in the Tariff. He cites the Hon'ble Supreme Court's Order in the case of Bharat Forge & Press Industries (P) Ltd. v. Collector of Central Excise 1990(01)LCX0072 Eq 1990 (045) ELT 0525 (SC). We find that the impugned goods is not an instrument for measurement of light, rather it is an instrument for deducting ATP levels thereby, deducting contamination/cleanliness level on surfaces and liquids. Therefore, it cannot be classified under the Heading specific to light meters. The residuary entry under Heading 9031.80 which covers other instruments is the more appropriate heading.

9. Consequently, the appeal is dismissed.

Equivalent 2010 (172) ECR 0029 (Tri.-Chennai)

Equivalent 2010 (253) ELT 0129 (Tri. - Chennai)

Equivalent 2010 (097) RLT 0061 (CESTAT - Che.)