1998(03)LCX0006

IN THE CEGAT, COURT NO. II, NEW DELHI

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

COLLECTOR OF CUSTOMS, MADRAS

Versus

SUNSHINE GENERAL INDUSTRIES

Final Order No. 301/98-B2, dated 31-3-1998 in Appeal No. C/1973/91-B2

CASE CITED

Delhi Surgical & Dressings v. Collector — 1983(01)LCX0003 Eq 1983 (012) ELT 0575 (Tribunal) — Referred       [Para 3]

Advocated By : Shri M.C. Sharma, CDR, for the Appellant.

Shri K.K. Anand, Advocate, for the Respondents.

[Order per : Lajja Ram, Member (T)]. - In this appeal filed by the Revenue, the order-in-appeal, dated 26-2-1991 passed by the Collector of Customs (Appeals), Madras, is under challenge. The matter relates to the classification of the goods which were described in the bill of entry as ‘Haemometer’. The respondents, M/s. Sunshine General Industries had sought classification of the Haemometer under sub-heading No. 9027.80 of the Customs Tariff which covered instrument and apparatus for physical or chemical analysis. The Assistant Collector of Customs, Madras, after referring to the explanatory notes to the tariff came to a view that the goods imported had the essential character of glassware and could not be classified as an instrument. On appeal, the order passed by the Assistant Collector of Customs was set aside and the Collector of Customs (Appeals), Madras, after referring to the sample and catalogue held that the goods were correctly classifiable under Heading No. 90.27 of the Customs Tariff.

2. We have heard Shri M.C. Sharma, CDR, for the appellants/Revenue. Shri K.K. Anand, Advocate, is present for the respondents.

3. We have carefully considered the matter and have given our due consideration and thought to the submissions made by both the sides. We find that Chapter 70 of the Customs Tariff covered glass and glassware. It is provided in Chapter Note 1 that Chapter 70 does not cover optical fibres, optically worked optical elements, hypodermic syringes, artificial eyes, thermometers, barometers, hydrometers or other articles of Chapter 90. Heading No. 70.17 under which Heading the Revenue had sought to classify the goods imported covered laboratory, hygienic and pharmaceutical glassware, where or not graduated or calibrated. The goods as per the product literature were consisting of haemometers sahli comparator tubes and dropping pipettes. They had been described in the product literature as under :

Haemometers Sahli, complete, consisting of bakelite support with two coloured rods and opal glass plate, comparator tube, haemoglobin pipette with rubber tube and plastic mouthpiece, dropping pipette with rubber teat, stirring rod, acid vial cleaning brush and directions of use, all parts safely packed against breakage

Code No.

1500 in cardboard case

1501 in velvet coated case

Comparator Tubes, round, double scale

Code No. 1520

Dropping Pipettes, soda lime glass, with rim, approx. 75x6/7 mm 0, with straight tip, with rubber teat Code No. 1560.

From the above description, it is seen that the goods imported were a complete instrument and could not be considered as simply laboratory glassware. Shri K.K. Anand, Advocate, had referred to the Tribunal’s decision in the case of Delhi Surgical & Dressings v. C.C., Bombay - 1983(01)LCX0003 Eq 1983 (012) ELT 0575 (CEGAT) wherein in para 8 the Tribunal had observed that the goods which were in the nature of specialised appliances to be employed for the specific purpose could not be considered as laboratory glassware. Para 8 from that decision is extracted below :

8. It is thus abundantly clear from a perusal of these catalogues that what was imported as blood counting chambers, were not plain glass slides but highly specialised appliances to be employed for the specific purpose of blood counting, and made to definite specifications and a great deal of technology has gone into their making. The fact that blood counting chamber by itself is known as haemocytometer is supported from a sample - a product of an American company which describes this as “haemocytometer: for diagnostic use for counting blood cells”. The party’s own box also is being sold as a haemocytometer set and except for this box nothing else is added to the imported item, namely, the chamber and the two pipettes. The physical examination of the pipettes further reveals that they are not wholly of glass but almost half of the portion is of transparent plastic tube and the other of the glass tube having measurements, and one of them has a red nozzle and the other white nozzle, and it is apparent that these red or white nozzles are to be correlated to red or white blood cells. There can also be no denying the fact, that this blood counting is a pathological function of blood testing, for various medical purposes. Even the Explanatory Notes to the BTN on which the learned Departmental Representative placed reliance clearly show that the expression “hygienic and pharmaceutical glassware” refers to articles of general use, “not requiring the services of a practitioner”. The subject goods cannot, by any straining of reasoning, be deemed to be articles of such general nature which can be put to use by a non-professional man. They are, on the other hand, highly specialised items to be read with the aid of a microscope, by qualified pathologists. The Department has apparently taken an erroneous view in regard to these specialised articles, as general laboratory glassware, in which category only such items as bottles, tubes, filters, distilling flasks, jars, etc. could fall, and pipettes also of general nature, and not made to specific requirements, as in the present case. The Department has itself been admittedly regarding them as such before the decision of the Collectors’ Conference referred to by the learned Departmental Representative. A reference to the extract of this Conference also reveals that they have proceeded on a wrong assumption, namely, that the “blood counting chamber” consisted of a simple glass container and has no other specific character whereas the catalogues mentioned above make it manifest that they have grooves as well as finely ruled lines, drawn to the thin layer of rhodium fused into the tube. Apart from the fact that the Collectors’ Conference cannot be treated as a guide for this Tribunal to arrive at a proper decision, otherwise also, hypothesis being unfounded, the validity of the decision is apparently open to question. These pipettes, as already observed, are part of the set, and having been made to go with the blood counting chamber, are also to be treated as an essential part thereof, and not a separate article of glass, apart from the fact, that they are not exclusively made from glass as already observed.

4. The learned Advocate also produced copies of bill of entries for the earlier period where the goods had been classified by the Revenue under Chapter 90 of the Tariff (bill of entry No. 004478, dated 17-5-1984 refers). Reference was also made to the bill of entry No. 252460 where the haemometer has been classified by customs under sub-heading No. 9027.80 of the Customs Tariff.

5. Reference has also been made to the explanatory notes to the Harmonized Commodity Description and Coding System. Under Heading No. 90.18 while explaining the coverage under that heading it had been given in Note to that the instruments and appliances used in instruments and appliances used in laboratories to test blood, tissue fluids, urine, etc. whether or not such tests serve in diagnosis were not classifiable under Heading No. 90.18 but were classifiable under Heading No. 90.27.

6. Keeping in view the nature of the goods imported the product literature and the bill of entries under which the goods had been assessed under sub-heading No. 9027.80 of the customs tariff, we agree with the view taken by the learned Collector of Customs (Appeals) in this matter. We do not find any merit in this appeal filed by the Revenue and the same is rejected.

Equivalent 1999 (113) ELT 120 (Tribunal)