TMI Blog1983 (2) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment was provisional because of the importer having disputed this classification. It transpires that parts of the goods were got cleared by paying provisionally charged duty whereas part of the consignment was still awaiting clearance pending determination of the dispute. 3. The Assistant Collector (Customs) of Air Cargo Unit, New Delhi by his order dated 5-11-1979 rejected the party s plea to the effect that this item known as `Blood Counting Chamber was part and parcel of an instrument known as Haemocytometer which is built and used for the specified purpose of counting of blood cells and that it was not a plain glass product but had optically worked element, and that it was a completely finished product at the stage when it was imported and was not subjected to any further process after import before being put to its intended use. The Assistant Collector held the item to be classifiable under Entry 70.17/18 of the Customs Tariff for the purpose of customs duty and auxiliary duty read with Tariff Item 23A(2) of the Central Excise Tariff. The Assistant Collector came to this view by reference to the Explanatary Notes appended to the BTN holding that according to these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to have applied his subjective views in the matter, and should have given further opportunity to the appellant for removal of doubts, and that there is, to that extent, violation of principle of natural justice. 6. He further contended that the observations fell short of conclusive study of the case, and that the catalogue annexed with the petition (Annexure C) also substantiated his claim that the goods were diagnostic medical appliances, and that the Appellate Collector erred in ignoring the said material placed on record. It was further elucidated that the goods had been incorporated with very accurate and precision rulings in the form of chambers on which highly diluted blood was introduced in which a film of fluid of precisely controlled thickness is super-imposed upon an accurately ruled grid permitting the enumeration of cells in a pre-determined volume of diluted blood. It was thus pleaded that the examination was of a highly minute precision and scientific, because this was for the diagnostic purpose in serious diseases and that the examination could not be carried out by naked eye but involved a thorough microscopic study, and thus these blood counting chambers fell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he focussing of 16 mm objective upon the plane of the ruled surface for counting white corpuscles. Chamber charging inclines I (see Fig. 2), which facilitate charging of the chamber and increase accuracy by reducing the risk of overcharging with its consequent tendency to lift the cover glass and increase the cell count. Also lessens danger of bubbles and uneven distribution because the chamber does not start to fill until sufficient solution has been discharged from the pipette at least to cover the ruled area, whereupon the chamber fills with a quick capillary influx. Deep, wide protesting trenches, both outside B (see Fig. 1), and transverse, which facilitate cleaning. Finding lines on the matte surfaces on left side of the slide. These lines facilitate location of the ruled area in the microscope field without danger of disturbing the distribution-and vitiating the count-by touching the cover glass with the objective. A shallow, polished concavity on the under surface beneath the rulings eliminates the possibility of scratching this surface and tends to reduce glare from an illumination source of great intensity. 8. He also placed reliance on a previous jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for arriving at the conclusion that the classification determined by the lower authorities of the subject goods, as falling under Tariff Entry 90.17/18 of the Customs Tariff:- 6. We have given very careful thought to these respective contentions and have gone through the relevant literature, and also perused the physical samples, which were produced by Shri Kumra-one of which being from the consignment in dispute or identical thereto, and the other being a similar item. 7. We find on a reference to the technical literature in the form of catalogue of another German concern, named Albert Sass that these blood counting chambers are not plain glass slides, but have a specific function, and the Bright-Line effect is obtained by fusing into the polished surface of the counting areas, a very thin semi-transparent layer of Rhodium this metal layer and appear under the microscope as a net of very bright radient lines. Shri Kumra also explained that these chambers have very fine grooves which are also not visible to naked eye, and these help the blood to disintegrate to facilitate counting. The catalogue of his own supplier, namely, Glas Messgerate also a German concern furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 on the thin layer of rhodium fused into them. Apart from the fact that the Collector s conference could not 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. 11. In view of the above, in the present case also, we find the classification of these goods which were imported as blood counting chambers under Tariff Entry 70.17/18 to be not sustainable. 12. However, we find that in the present case, the appellant has laid stress repeatedly in the grounds of appeal and also during hearing that the goods were properly classifiab ..... 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