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2018 (11) TMI 241 - AT - CustomsClassification of imported goods - Helium Leak Testing Machine Twin Chamber with Recovery System - whether classified under CTH 9031 or under 9026? - benefit of N/N. 24/2005-Cus (S No 31) - Held that:- From the perusal of the complete technical literature it is quite evident, that item under importation, cannot be called an instrument or apparatus as understood in common parlance. Even going by the definition of the term instrument as referred to by the appellants in their submissions i.e. ““A device for measuring and sometimes also recording and controlling the value of quantity under observation.” The item imported fails to qualify as an instrument because the item is itself not a device, but a combination of various instruments, apparatus and devices, and referred to by term “system” in the technical literature - As per note 3 and 4 to Section XVI made applicable to chapter 90 by virtue of chapter Note 3 to said chapter, the item will qualify only as machine. From the opinion of Chartered Engineer and also the technical literature, it is evident, that the said machine is used for detecting leakage and not for the purpose of measuring or checking the flow, level, pressure or other variables of liquids or gases - There are two Chartered Engineers Certificate produced one is dated 28.09.2008 and second dated 5.10.2008. While that dated 28.09.2008 is in respect of the item under consideration, the second one is determining the classification of the item - It is well settled law that determination of classification is the function of assessing authority and the Chartered Engineer has no jurisdiction to determine the same. Hence the second opinion has to be ignore and classification determined on the basis features of machine along with the first opinion of Chartered Engineer. Simple reading of the said explanatory note makes it clear that miscellaneous measuring and checking devices are classified under heading 9031, whereas only those with specific functions as specified by terms of heading of 9026 have been classified in that heading. Since the item in question is not used for measuring any parameters in relation to liquid or gasses the same is more appropriately classifiable under heading 9031 - thus, the item “Helium Leak Testing Machine Twin Chamber with Recovery System” appropriately classifiable under heading 9031 49 00, the benefit under Notification Number 24/2005-Cus (S No 31) is not admissible to them. Appeal dismissed - decided against appellant.
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