TMI Blog2018 (11) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Testin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are in appeal before us. 3.1 In their appeal, appellants have challenged the orders of Commissioner (Appeal) on following ground; i. Both the authorities have failed to appreciate, the technical features of the said machine and have also not appreciated the technical reasoning given by the Chartered Engineer Certificate to support the classification under Custom Tariff Heading 9026. ii. They have not been put on notice on technical aspects as to why department intend to amend the classification, to defend the case. iii. Both the authorities below have failed to appreciate that the machine can be a checking/ measuring instrument. Machine in its complete form is not a simple handy instrument to measure the flow, level, pressure or other variable of liquid or gases cannot be a reason for holding the same to be not classifiable under heading 9026 and classifiable under 9031. iv. The imported goods in question are in fact measuring or checking instrument, and hence classifiable under heading 9026. Since the imported item measures the flow the flow of gas viz Helium and records such flow which is means to check as to whether there is any leakage in the radiator, it essent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as viz helium and record such flow, which is the means to check as to whether there is leakage in radiator, it is essentially an instrument classifiable under heading 9026. b. He heavily relied upon the opinion rendered by the Chartered Engineer and also the technical literature to support his case for classification under 9026. c. He relied on the meaning of word instrument as given in McGraw Hill Dictionary of Scientific and Technical Terms to argue that item under importation is nothing but an instrument. d. he relied on the case laws mentioned in his appeal to submit, that as per the law settled by these authorities, the correct classification of items imported by them will be 9026 as claimed by them. e. Since the item under import is correctly classifiable under heading 9026, the demand for differential duty cannot be sustained against them. 4.3 Arguing for the revenue, learned Authorized representative submitted a. Item imported is a machine and not a standalone instrument or apparatus. It is used for checking evaporators, condensers, compressors, radiators etc used in refrigeration and air conditioning industry. b. The automotive industry part to be test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments, 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. For ease of reference the said chapter note and section notes are reproduced below: Note 3 to Chapter 90: 3. The provisions of Notes 3 and 4 to Section XVI apply also to this Chapter. Notes 3 and 4 to Section XVI 3. Unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complimentary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function. 4. Where a machine (including a combination of machines) consist of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in chapter 84 or 85, then the whole falls to be classified in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.09.2008 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 {J M Baxi Co [2015 (318) ELT 688 (T)]} 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. 5.10 Reference is also made to the HSN Explanatory Notes (reproduced below) for the said headings. 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. 5.11 In view of our holding the item Helium Leak Testing Machine Twin Chamber ..... 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