Gujarat State Fertilizers Co. Ltd. vs Collector of Customs, Bombay>1997(03)LCX0119

1997(03)LCX0119

IN THE CEGAT, COURT NO. II, NEW DELHI

S/Shri Lajja Ram, Member (T) and S.S. Kang, Member (J)

GUJARAT STATE FERTILIZERS CO. LTD.

Versus

COLLECTOR OF CUSTOMS, BOMBAY

Final Order No. C/912/97-B2, dated 25-3-1997 in Appeal No. C/1617/91-B2

Advocated By : Shri Willingdon Christian, Advocate for the Appellant.

Mrs. R. Pant, SDR, for the Respondent.

[Order per : Lajja Ram, Member (T)]. - In this appeal filed by M/s. Gujarat State Fertilizers Co. Ltd. (herein after referred to as GSFC) the matter relates to the classification of bearing analyser BEA-52. The appellants on import cleared the said goods on payment of Customs duty under heading No. 90.28(1) of the Customs Tariff. The Customs duty was paid on 2-5-1985. Subsequently they filed a refund claim of Rs. 9991/- on the ground that bearing analyser in question were correctly classifiable under heading No. 90.28(4) read with heading No. 90.25(1) of the Tariff. The Assistant Collector of Customs rejected the refund claim on the ground that the goods imported were just bearing analyser. The Collector of Customs (Appeals) in para 7 of his order-in-appeal has discussed as under :-

“7. The appellants produced catalogue of shock pulse meter 43A and Bearing Analyser BEA 52. From these catalogues it is observed that both shock pulse meter and Bearing Analyser are functionally similar. The catalogue for the impugned Bearing Analyser BEA-52 states that ”the BEA-52 measures the lubrication condition in the rolling interfaces by analysing the shock pulse pattern emitted from the Bearing." The impugned goods measure lubrication and mechanical condition in ball and roller bearings. Therefore, it is clear from the catalogue that the impugned bearing analyser is performing neither physical nor chemical analyses. The appellants, to a query as to how the impugned goods fall under heading 90.25(1) had stated that the impugned goods indicate the condition of the bearings by analysing surface tension. But in fact the impugned goods analyse the shock pulses generated by the rolling surfaces and then indicate the condition of the bearing. Therefore, the submission of the appellant that the impugned goods operate on the principle of analysis of surface tension is not acceptable. Hence the impugned goods do not merit assessment under heading 90.25. Since the non electric counter part of the impugned goods is not falling under headings 90.14 to 90.16 or 90.22 to 90.25 or 90.27 these goods are automatically excluded from the purview of heading 90.28(4)."

2. Learned Advocate for the appellants submitted that the product literature as analysed by the Collector of Customs (Appeals) clearly shows that, among others the bearing analyser BEA-52 was for physical analysis of the bearing. He referred to the product literature at page 30 of the paper book. He also submitted that heading 90.28(1) was a residuary entry and classification under that entry could only be considered if the goods were not specifically covered by any other sub-heading and stated that the non electric counter part of the electrical bearings analyser BEA-52 was classifiable under heading No. 90.25 and therefore the correct classification was under sub-heading (4) of heading No. 90.28.

3. In reply Mrs. R. Pant, SDR submitted that in the Bill of Entry the goods mentioned here is just bearing analyser, as discussed by the appellate authority. The bearing analyser was only for checking the lubrication and was not for any physical analysis. She submitted that the view taken by the Collector of Customs (Appeals) was correct.

4. We have carefully considered the matter. Under the Bill of Entry the goods in question had been referred as bearing analyser. In the invoice the article number had been given as BEA-52. From the product literature of bearing analyser BEA-52 it is seen that it measures lubrication and mechanical condition in ball and roller bearings. It also checks the fatigue in the bearing which is related to oil film thickness which in turn depends on how the bearing is installed, used and lubricated. It is stated in the literature that the BEA-52 is only instrument which measures the effect of all these factor on bearings operating in industrial environments. It is further stated that like earliler shock pulse meters from SPM, the bearing analyser is also a reliable damage detector. Too many serviceable bearings are wasted by routine replacements which, moreover, do not remove the risk of expensive breakdowns and emergency stoppages. Condition monitoring has been shown to be the only economical alternative. Regular measurements with Bearing Analyser BEA-52 will help maintenance personnel to replace the right bearing at the right time. When surface stresses are too great or damage has already occurred, the instrument will display a condition number for the bearing. This number indicates the extent of surface damage on rolling elements and raceways. The trend of the condition number allows an assessment of the remaining bearing life. Necessary bearing replacements can thus be planned in advance, combining a minimum failure risk with the shortest possible downtime.

5. We find that heading No. 90.25 relates to the non-electrical instruments and apparatus. It covers the instruments and apparatus for physical or chemical analysis instruments and apparatus for measuring or checking viscosity, porosity, expansion, surface tension or the like as viscometers, porosimeters, expansion instruments and apparatus for measuring or checking quantities of heat, light or sound. Heading No. 90.28(4) specifically mentions the electrical instruments and apparatus the non-electric counter parts of which fall under heading Nos. 90.14 to 90.16, 90.22 to 90.25 or 90.27 to which the rate applicable to the non-electric counter parts will be applicable. We find that the coverage of this sub-heading No. (4) of heading No. 90.28 is also wide. The rate of duty is 40%.

6. Learned Advocate had also submitted that the sub-heading (1) of heading No. 90.28 is a residuary entry and the classification under this sub- heading could only be considered if the goods are not classified under any other specific heading/sub-heading. Keeping in view the scheme of the Tariff and the scope of heading No. 90.25 when read in the context of 90.28(4) we consider that the classification of bearing analyser BEA-52 under the residuary entry No. (1) of heading No. 90.28 was not proper and they were correctly classifiable under sub-heading No. (4) of Heading 90.28.

7. Taking all the relevant considerations into account we do not agree with the learned Collector of Customs (Appeals). Accordingly the appeal is allowed. Ordered accordingly.

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Equivalent 1998 (97) ELT 133 (Tribunal)

Equivalent 1997 (021) RLT 0030 (CEGAT)