2002(10)LCX0193

IN THE CEGAT, WEST ZONAL BENCH, MUMBAI

S/Shri G.N. Srinivasan, Member (J) and K.K. Bhatia, Member (T)

GUJARAT STATE FERTILIZERS & CHEMICALS LTD.

Versus

COMMR. OF CUS., MUMBAI

Order No. 3089/2002-WZB/C-II, dated 18-10-2002 in Appeal No .C/196/97-Bom.

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

Shri P.K. Agarwal, DR, for the Respondent.

[Order per : G.N. Srinivasan, Member (J)]. - This is an appeal filed by the appellant against the decision of the Commissioner of Customs (Appeals), Mumbai classifying the imported items of “Gel Documentation and Image Analysis System with Integrated Facility and Glossy Thermal Paper under chapter sub-heading 8471.91 and not under chapter sub-heading 9027.80 as claimed by the appellant.

2. The appellant imported the above items and filed the bill of entry claiming the goods under chapter sub-heading 9025.80 at the time of import. They waive show cause notice. They filed technical note in respect of goods imported. The same is described at 20 of the paperbook which reads as under :-

“PURPOSE : Some microbiological analysis requires analyzing genetic material or protein molecules contained in cells. This genetic material or DNA (Deoxyribo Nucleic Acid) cannot be seen with naked eye or even ordinary microscope. Routinely different DNA or protein molecules are separated form other cellular components under electrical field by a technique called Electrophoresis on gels made from agarose or poly acrylamide. These separated molecules are visualised in the form of bands in different rows after being stained by different dyes/stains. During electrophoresis, the DNA molecules migrate at a speed depending upon their molecular weight, which is a characteristic physical property of that molecule. Thus DNA/protein molecules with different molecular weights will migrate at different speeds and separate. When these are visualized either by staining or under UV rays, the characteristic pattern of different DNA fragments produced, will permit analysis of physical property, namely molecular weight, by comparing with standard (Please refer to attached thermal print out of a gel image). In some genetic analysis it is important to know molecular weights of such molecules. Sometimes it is also required to check modifications taken place in the DNA fragments due to experiments. This physical analysis of variation in DNA (addition or deletion of fragments) can be carried out buy using this image analysis system.”

The matter was considered by the adjudicating authority who held inter alia “Neither catalogue/literature found in the package nor the explanation submitted by the importers state that the imported instruments/apparatus does any physical or chemical analysis or can be used as measuring and checking instruments.” The adjudicating authority highlighted the term visualisation and quantitative image analysis in the order passed by it. The analysing system was referred into the order-in-appeal when the matter was taken up by way of all appeal by the importers. Both orders below classified the product under chapter sub-heading 8471.91.

3. The learned Counsel for the appellant took us through the literature in respect of product in question and he also showed us photograph of the imported materials. He stated that the purpose of the product is to have analysis of the molecules DNA and RNA and pleads exemption. The learned D.R. on the other hand reiterate finding of the lower authority.

4. When we go through the orders it will be clear that the adjudicating authority did not take note of the fact of analysis done by the product in question. The technical note referred in earlier portion of the order mentioned above function of the analysis done by the product. The chapter sub-heading 90.27 read as under :

“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.”

Chapter sub-heading 9027.80 thereof read as under

“9027.80 - Other instruments and apparatus”

The contrasting Chapter sub heading 84.71 read as under

“84.71 - Automatic data processing machines and units thereof; magnetic or optical readers, machines for transcribing data on to data media in coded form and machines for processing such data, not elsewhere specified or included .”

when we go through the same it will be very clear that the instrument does the analysis work and that is reflected in page 21.

“Electrophoresis instruments. These are based on the change in concentration occurring when a direct current is passed through a solution. The electrically charged particles migrate at different speeds according to the nature of the product.

These instruments usually incorporate a photometric device consisting of a photoelectric cell and a millimeter graduated directly in units of optical density. They are used for analysing various solutions (proteins, amino-acids, etc.), for examining substances such as plasma, hormones, enzymes, viruses, etc., and for studying polymerization phenomena.”

When we read the literature in respect of instrument as well as the HSN note and the technical note it will be very clear that the product look into photograph of the solution through which electricity is passed and the movement of molecules in the form of DNA and RNA which reflected in the image form. Description provided in the HSN note clearly makes the point very clear in classifying the goods under chapter sub-heading 9027 as claimed by the importers. Hence the impugned order according us is wrong and hence it is set aside. The goods under consideration is classified as such under chapter sub-heading 9027 in the Customs Tariff Act. Appeal is allowed with consequential relief if any according to law.

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Equivalent 2002 (146) ELT 0547 (Tri. - Mumbai)