TMI Blog2016 (5) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... ves the light. In this way the item gives a signal, whenever light is obstructed, when some other substance or a thing comes in between. In this way whenever there is obstruction and there is no signal received by phototransistor, the outcome again will be a kind of signal and that is used in signal receiving machines/instrument to know that how many times there is restriction/obstruction in receiving light. In this way this item is being used by the appellants for manufacturing harness connectors which are then supplied to ATM manufacturing companies. Revenue’s argument that the item in question is covered under Chapter Heading 9031.8000 saying that it is a measuring and checking instrument, which is the specific description for Chapter Heading Entry 9031. Here Revenue refers to Explanatory Notes under Section (I)(A) and Entry 7 further saying it is an opto-electronic and pneumatic sensor. However Revenue has completely failed to indicate/prove that how the item in question is a measuring or checking instrument to be covered under CTH 9031.8000. Therefore, the subject item is covered by 8541.40 and it cannot be covered under the Chapter Heading 9031.8000. - decided in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dian Institute of Science, Bangalore wherein he inter alia says as below: The products enclosed are Sensors which are nothing but photo sensitive semi conductor devices. This sensor assembly performs the function of sensing by emitting and receiving lights between LED and Phototransistor which are placed at a distance on a plastic housing. A photo sensor is an electronic component that detects the presence of visible light and infrared transmission. These photo sensors consist of semi conductor having property photo conductivity. These are semi-conductor devices as they can function within 24V. Considering the above functionality, these are nothing but a photo sensitive semi-conductor device. 2.1. The appellants further say that their product is Photo Sensor and it is not a kind of measuring and checking instruments covered under Chapter Heading 9031 of Customs Tariff. They state that item in question is not a measuring or checking instrument, appliance and machine, which are covered as inclusion in the Chapter Heading 9031 of Customs Tariffs Explanatory Notes 1(A) 7 where it says as below: (I) Measuring or Checking Instruments, Appliances and Machines (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Photosensitive Semiconductor Devices inter alia explain as below. Firstly we are quoting Tariff Heading Entries/Description. 3. Revenue represented by learned AR Shri Pakshi Rajan inter alia argues that item is rightly covered under Chapter 9031. He refers to order-in-original issued by Deputy Commissioner wherein the Hon ble Supreme Court s decision reported in 2010 (258) ELT 321 (SC) - LML Ltd. Vs. Commissioner of Customs has been quoted saying that HSN Explanatory Notes are dependable guide for interpretation of Customs Tariff. 3.1. He also says that conclusion arrived at by the Deputy Commissioner in order-in-original is that subject item in simple terms receive light emitted by Light Emitting Diodes (LED) and there is hardly any scope for disputing the classification of sensor under CTH 9031. He says that order-in-original mentions that classification under Chapter Heading 90.31 is further strengthened by the data downloaded from the NIDB as per which generally all types of sensors are classified under CTH 9031/9032 in major customs houses like Mumbai and Chennai and by other importers in Banaglore. 4. The facts on record and the submissions of both sides have been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of disputing the classification of sensor under CTH 9031 and contending to classify under CTH 8548 is not legally sustainable. The appellants contention that the device is only a semiconductor device meriting classification under Heading 8541 4090 is not acceptable as the device is in fact a sensor specifically covered under HSN Note 9031 (I)(A)(7), indicating sensors classification under Heading 9031 8000. Though the subject item are not measuring, regulating or controlling instrument they are performing specific function as sensors and are classifiable under CTH 9031. Reliance is place on HSN Explanatory Notes which is held by the Hon ble Supreme Court in case reported in [2010 (258) ELT 321 (SC)]. 4.2. We find that in the Order-in-Appeal as quoted above Revenue completely fails to indicate or prove that what kind of measurement or checking this particular item was doing. The Order-in-Original as well as Order-in-Appeal mentions Honble Supreme Courts decision in the case of LML Ltd. Vs. Commissioner of Customs (supra) but this decision of Honble Supreme Court only says that HSN Explanatory Notes are dependable guide for interpretation of Customs Tariff. However HSN E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itive semi conductor device. He has further certified as below: The products enclosed are Sensors which are nothing but photo sensitive semi conductor devices. This sensor assembly performs the function of sensing by emitting and receiving lights between LED and Phototransistor which are placed at a distance on a plastic housing. A photo sensor is an electronic component that detects the presence of visible light and infrared transmission. These photo sensors consist of semi conductor having property photo conductivity. These are semi-conductor devices as they can function within 24V. Considering the above functionality, these are nothing but a photo sensitive semi-conductor device. 4.5.1. There is no dispute on that fact that the item imported is a photo sensitive sensor, which works on the principle of light passing through the LED (Light Emitting Diode) and received by phototransistor. Thus these are two main parts in the item which are LED and phototransistor. The appellants state that they are using this item for manufacturing connector harness machines which they supply to ATM manufacturing companies. 5. We reiterate that the main issue here is whether the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acturing harness connectors which are then supplied to ATM manufacturing companies. 5.2. Revenue s argument is that the item in question is covered under Chapter Heading 9031.8000 saying that it is a measuring and checking instrument, which is the specific description for Chapter Heading Entry 9031. Here Revenue refers to Explanatory Notes under Section (I)(A) and Entry 7 further saying it is an opto-electronic and pneumatic sensor. However Revenue has completely failed to indicate/prove that how the item in question is a measuring or checking instrument to be covered under CTH 9031.8000. Their reference to Hon ble Supreme Court s decision in the case of LML Ltd. Vs. Commissioner of Customs (supra) cannot support their case at all, which only says that HSN Explanatory Notes are a dependable guide for deciding the classification of any item. For making use of HSN Explanatory Notes as a guide we have to read the Notes specifically with regard to the contents and characteristics of the item in hand. 5.3. Here we also refer to Cross Ruling 088341 dated February 26, 1991 referred earlier submitted by the appellants. The Ruling inter alia states as below: ISSUE: Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X
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