Gujarat State Fertilisers Company Ltd. vs Collector Of Cus., Bombay>1997(12)LCX0241

1997(12)LCX0241

IN THE CEGAT, COURT NO. II, NEW DELHI

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

GUJARAT STATE FERTILISERS COMPANY LTD.

Versus

COLLR. OF CUS., BOMBAY

Final Order No. C/2891/97-B2, dated 5-12-1997 in Appeal No. C/255/92-B2

Cases Quoted

Shri Ram Pistons & Rings v. Collector — 1996(12)LCX0108 Eq 1997 (092) ELT 0598 (Tribunal) — Distinguished [Paras 3, 12]

Larsen and Toubro Ltd. v. Collector — 1996(04)LCX0137 Eq 1997 (093) ELT 0234 (Tribunal) — Distinguished [Paras 3, 12]

Advocated By : S/Shri Willingdon Christain and Mayur Shroff, Advocates, for the Appellant.

Shri S.N. Ojha, JDR, for the Respondent.

[Order per : Lajja Ram, Member (T)]. - In this appeal filed by M/s. Gujarat State Fertilizers Co. Ltd. (GSFC), the matter relates to the classification of 35 mm camera system and the accessories which had been imported by the appellants as Triocular Research Microscope with Planchromatic Phase Contrast 35 mm camera system. The appellants sought classification of the consignment under sub-heading No. 9011.20 as other microscopes for photomi- crography, cinephotomicrography or microprojection. The Department classified the microscope part under sub-heading 9011.20, the 35 mm camera system was classified under sub-heading 9066.59 of the Tariff and the CCTV system was classified under sub-heading 8528.10. The matter was adjudicated by the Asstt. Collector of Customs, Cargo Complex Sahar, Bombay. On appeal the order passed by the Asstt. Collector of Customs was confirmed by the Collector of Customs (Appeals), Bombay.

2. We have heard Shri Mayur Shroff, Advocate for the appellants. Shri S.N. Ojha, JDR is present for the Respondents Revenue.

3. Shri Mayur Shroff, Advocate referred to the product literature and the relevant invoices and pleaded that the camera and the Colour Television were part of the microscope and as per HSN explanatory note they could be classified along with the microscope. He referred to page 1476 of the explanatory notes under Chapter 90 of the Tariff. He submitted that the Camera was specially designed for the specific purpose to see the micro-organism on the screen which could be seen through the microscope. He referred to the packing list in which the goods have been packed as one package. He relied upon the decision in the case of Shri Ram Piston and Rings v. Collector of Customs, [New], Delhi [1997 (092) ELT 598] and the Tribunal decision in the case of Larsen and Tourbo Ltd. v. Collector of Customs, Bombay - 1997 (093) ELT 234.

4. Shri S.N. Ojha, JDR referred to the Rules of Interpretation and Chapter note and submitted that the camera and the television had been specifically described in the Tariff and that it is clear from the invoices and the product literature that they were not a part of the microscope. He submitted that the Chapter Note 2(b) of Chapter 90 could be applied only when the goods were not otherwise classifiable under Note 2(a) of the Chapter Notes under Chapter 90. He also referred to the HSN explanatory notes and submitted that the camera was not a part of the microscope. He also referred to the detailed findings by the Appellate Authortiy. It was his contention that the case law relied upon by the appellants was not relevant to the facts which were distinguishable.

5. Shri Mayur Shroff, Advocate stated that they had imported the entire system as a whole and that the case law relied upon by the appellants covered the facts in dispute.

6. We have carefully considered the matter. We find that in the Bill of Entry which is on page 7 of the paper book, the appellants have described their goods as Triocular Research Microscope with Planchromatic Phase Contrast 35mm camera system. The country of the origin of the goods in question had been shown as USA/China/Japan. The goods had been imported from the USA. In the invoice also the country of origin had been shown as USA/ China/Japan. It is also seen from the invoice which is at pages 8-10 of the paper book that the microscope - Part No. 31-75-03-06 was of Chinese origin while 35 mm camera system (Pentax 1000 camera) part No. 31-74-80-01 is of Japan origin. The colour solid state CCTV system with 13 inch monitor part No. 42-12-85-01 was made in USA.

7. In the product literature it has been described that a Galen III microscope equipped with a 35 mm camera produces superb photomicrographs time and time again and that for CCTV requirements complete colour or black and white system were available. The basic features of the microscope had been described at page 34 of the paper book.

8. In the Technical Write Up at page 31 it had been stated that the Galen III microscope equipped with 35 mm camera is specially meant for documentation of microscopic images (photomicrographs) for future use and that the CCTV system functions to display the microscopic images of the specimen on a TV display for viewing by a group of research persons for group discussion.

9. The compound optical microscope including those for photomicrography, cinephotomicrography or microprojection, were classifiable under Heading No. 90.11 while microprojection were classifiable under Heading No. 90.11 of the Tariff, under sub-heading 9011.10 stereoscope microscope were classifiable. Other microscopes for photomicrography, cinematography, or microprojection were classifiable under sub-heading 9011.20. Other microscopes were classifiable under sub-heading 9011.80. In the HSN at page 1475, it is provided that a compound optical microscope normally comprises :-

(1) An optical system consisting essentially of an objective designed to produce a magnified image of the object and an eye piece which further magnifies the observed image. The optical system usually also incorporates provision for illuminating the object from below ( by makes a mirror to illuminated by an extended or an integral light source) and a set of condenser lenses which direct the beam of light from the mirror on to the object.

(2) A specimen stage one or two eye piece holder tubes (according to whether the microscope is the monocular or binocular type) and an objective holder (generally revolving). The whole is fixed on a stand to which a limb or bracket and various adjusting accessories may be attached. In the composition of the microscope, there is no reference to the camera or to the camera TV/Monitor.

10. Ld. Advocate had referred to the following description in the explanatory notes.

The heading also covers :

Microscopes for photomicrography and microscopes for cinephotomicrography. In addition to the visual observation of the specimen, these also permit the photographic recording of magnified images. They may be composed either of microscope permanently incorporating a photographic or cinematographic camera usually specially designed for this purpose, or of a conventional microscope to which a conventional photographic or cinematographic camera can be temporarily fixed by means of a sample attachment.

Separately presented photographic or cinematographic cameras for photomicrography or cinephoto micrography are excluded the Heading 90.06 or 90.07 respectively.

11. It is seen that the microscope with which the photomicrographic or cinematographic camera had been permanently incorporated will be classifiable along with microscope. Separately presented photomicrographic and cinematographic camera for photomicrography or cinephotomicrography were excluded from that heading. We find that there is no reference to the television set or the monitor anywhere in these notes and it appears clear to us that as far as the television set/monitor is concerned, clearly it was out of the scope of the microscope. Further we find that in this case the camera had not been permanently incorporated in the microscope and they had been separately shown in the invoice and separate charges had also been shown for the camera and the television set. In this connection we find that the Collector Customs (Appeals) had referred to the Chapter note under Chapter 90 of the Tariff and had observed that as the camera and the Television set were separately shown in the invoice and the catalogue and as they were specifically covered by Tariff Heading 9091.66 and Heading 8582 respectively, they were to be classified in terms of Note 2(a) and not under Chapter Note 2(b). He had also referred that the microscope was functional even without camera and Television set and that they were required only when the photographs were required. They were not the special part of the microscope. He had also referred to the technical literature in which it is clearly shown that the camera was required when the photomicrographs were required for future use and the TV display was only when the microscope images, were required to be viewed by a research persons for group discussion. The technical literature supplied by the appellant is at pages 31 and 32 of the paper book.

12. The packing in a single carton will have no bearing on the classification of the different products which had to be classified in terms of the Chapter heading and the relevant notes. The Advocate had referred to the Tribunal decision in the case of Shri Ram Pistons & Rings v. Collector of Customs, New Delhi [1997 (092) ELT 598] in which the computer had been imported with the spectrometer. The Tribunal had taken a view that the computer was an essential part of direct reading spectrometer. It was in this context that the Tribunal held that the assessment of computer was to be done along with the main spectrometer. In the case of Larsen and Toubro Ltd. v. Collector of Customs, Bombay - 1996(04)LCX0137 Eq 1997 (093) ELT 0234 (T) the issue related the classification of hydraulic cylinder which was considered to be a part meant for use with big excavator. The Tribunal had decided that the hydraulic cylinder was classifiable under the same heading as that of excavator. We find that in this case the camera and the television set were not the essential part of microscope; the microscope was a separate identifiable commodity and was separately classifiable. The camera and the television set are separately described in the Tariff.

13. The camera and the television set were not permanently incorporated in the microscope and were separately listed in the invoice with separate price and were required only when the micrographer were required for future as or when the Scientists were to be discussed in research class. They do not become an essential part of the microscope.

14. Taking all the relevant facts and circumstances of the case into account we do not find any ground to interfere with the view taken by the Collector of Customs (Appeals), we find no merit in this appeal and the appeal is rejected.

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Equivalent 1998 (99) ELT 599 (Tribunal)