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TMI Blog2006 (1) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... ial No. 271(A)-Sl. No. 66 of the List 21). The investigating officers recovered several incriminating documents. Statements of various persons recorded under Section 108 of the Customs Act, 1962. It was seen that even though the imported goods are photometers, the Respondents have advised the foreign suppliers to describe the goods as 'auto analysers' so that they need not face any problem with the Customs. A show cause notice dated 2-11-1999 was issued to the Respondents proposing duty demand of Rs. 1,79,11,499/- in respect of the various models of photometers imported by the Appellants in the guise of 'auto analysers' under proviso to Section 28(1) along with interest in terms of Section 28AB. Further it was proposed to hold the imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner has erred in granting benefit of Customs exemption Notification to the goods in question and therefore, the order of the Commissioner is not legally correct and proper to the extent mentioned in the Grounds of Appeal. 2. Shri K. S. Bhat, learned SDR appeared for the Revenue and Shri B.V. Kumar, learned Advocate for the Respondents. 3. The learned SDR with the help of the available documents made the point that the photometers are different from auto analysers. Even the web site of the supplier indicates photometers and auto analysers separately. Photometer is an instrument for measuring the intensity of light. Photometers have got various applications. It is seen from the records that the impugned goods cannot be di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only on loading the required software which makes the instruments measure the absorbencies as per the software loaded. (b) Photometer is a general purpose instrument. If the general purpose instrument is used for some biochemical analysis, the same will be eligible for exemption as auto analyser. (c) The instruments are not multi-parametric analyzers as contended by the importer in the write-ups given to customs. They can test only one parameter at a time. (d) The adjudicating authority has not decided the issue whether the subject goods are to be treated as photometers or auto analysers. (e) Since the adjudicating authority has accepted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntends that the impugned item is neither a blood gas analyzer nor a sodium or potassium analyzer. That means, the item which is left in Sl. No. 66 is auto analyser for Ensymes, Drug levels and Biochemical investigations only. The adjudicating authority holds that the impugned goods are only auto analysers. How does he come to the conclusion that the impugned goods are auto anlaysers in spite of the evidence unearthed by the DRI. In Para 45 the adjudicating authority quotes from Text Book of Clinical Chemistry, second edition edited by Carl A. Burtis and Edword R. Ashwood which briefly given the history of auto analyzer. We do not understand how from the above, he could infer that the impugned goods are auto analyzers. He states that "When t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expression. After stating that, in the same breath, he says that the impugned goods are auto analysers. His logic appears to be faulty. After going through the technical literature placed before us, we are of the view that a photometer is not the same as auto anlyser. They are distinct equipments. Photometer is actually an instrument used for measuring the intensity of light. The HSN Explanatory Note [ under 90.27 has an entry at serial No. 29 on photometers. In our view, the distinction between semi automatic analyzer and fully automatic analyser is not at all relevant for the issue at hand. The one single question which should be answered in the light of DRI investigation is whether "the imported item is an auto analyzer" In this connecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to analyzer to facilitate easy clearance from customs. This was done at the behest of Vice-President to avail benefit of exemption. Dr Jayram Chiguripati, Sr. Vice-President agreed with the contents of the statements of above persons. It should be borne in mind that none of the statements has not been retracted. From the above, it is very clear that the impugned items are not auto anlysers and not at all entitled for exemption notification. In these circumstances, the adjudicating authority has erred in granting the benefit of notification to the impugned goods. Therefore we are inclined to allow the appeal of the Revenue by ordering as follows : (i) The Respondents are liable to pay duty of Rs. 1,79,11,499/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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