TMI Blog2020 (7) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim of the appellants about the classification under Heading 9036. The same having not been done, there is no evidence to contradict the claim of the appellants. The appellants should be eligible to classify the goods under 9026 - Also, as it is not evidenced that the instruments do not have any mechanism to control or trigger, start or stop of the engine, in view of the HSN Explanatory Notes, they cannot be classified under 9032. Appeal allowed - decided in favor of appellant. - Customs Appeal No. 2981 of 2011 - Final Order No. 20376 /2020 - Dated:- 2-7-2020 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER AND SHRI P. ANJANI KUMAR, TECHNICAL MEMBER For the Appellant : Mr. Ravi Raghavan Mr. Rohan, Advocate For the Respondent : Mr. P. Gopakumar, Joint Commissioner (AR) ORDER The Appellants M/s. Bosch India Ltd are engaged in the manufacture of automotive parts and components classifiable under Chapter 87 of the Central Excise Tariff Act, 1985 and import various Sensors for use in the automobile; the Appellants vide Bill of Entry No. 245467 dated 19.10.2009 imported Water Signal classifying under Tariff Item 9026 80 90 of the Customs Tariff Act, 1975 cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Vehicle; when the water level in the decanter chamber of the Filter reaches the pre-determined safe level, the lamp/ LED glows, thus indicating the end user (i.e. Driver) to drain the water by unscrewing the device; he submitted suppliers catalogue. 3. Learned counsel for the appellants further submits that Tariff Item 9032 89 90 of the Customs Tariff; Chapter Heading 9032 of the Customs Tariff Act only deals with automatic regulating or controlling instruments and apparatus; in terms of the above Chapter Note 7(a) to Chapter 90, instruments and apparatus which automatically controls the variables of liquids or gases and which are designed to bring this factor to and maintain it at a desired value by constantly or periodically measuring the actual value are classifiable under Chapter Heading 9032; in terms of the HSN Explanatory Notes to Chapter 90.32 at Pages XVIII-9032-1 to XVIII-9032-3, for an instrument to be classified under Chapter Heading 9032, the same should be a single entity or single functional unit consisting of three devices namely i.e. a device for measuring the variable, Comparing the measured value with the desired value and actuates the third device and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olling device which compares the measured value with the desired value only, and does not consist of a starting, stopping or operating device which brings or maintains the measured value of the water in the Decanter chamber to/ at the desired value; therefore, the Water Signal is not classifiable as an Automatic regulating or controlling instrument or apparatus under Chapter Heading 9032 of the Customs Tariff. 4. Learned counsel for the appellants submits that Water Signal/ Sensor is classifiable under Tariff Item 9026 80 90 of the Customs Tariff; the Appellants submit that the instruments or apparatus which measures or checks the flow, level, pressure or other variables of liquids or gases are classifiable under Chapter Heading 9026 of the Customs Tariff; Therefore, the Water Signal is a level indicator for liquids and is therefore a measuring or checking instrument or apparatus classifiable under Chapter Heading 9026 of the Customs Tariff. He submits that the Australian Customs and Border Protection Service pursuant to the Tariff Advice Application filed by M/s. Robert Bosch (Australia) Proprietary Limited, has examined the classification of Water Signal vide Tariff Advice d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Chapter Heading 9032; they have all along classified the Sensors under Tariff Item 9026 80 90 and the Department has been assessing the goods under the classification as claimed by the Appellants, without raising any objection whatsoever at the time of clearance of the goods; when an importer claims a classification under a particular heading/sub-heading, the onus will always be on the Department, if it proposes to change the classification for any reason as held in Hindustan Ferrodo Ltd Vs CC Bombay, 1997 (89) ELT 16 (SC). Singhla Sales Corporation Pvt Ltd Vs CC Amritsar - 2002 (141) ELT 806 (Tri-Del) M.P. Dyechem Industries Vs CCE, Bhopal - 2002 (139) ELT 656 (Tri.-Del) 7. Learned counsel for the appellants submits that Demand is not sustainable as the assessment in Bill of Entry not challenged; the impugned Order seeks to re-determine the classification of the imported goods and has confirmed the demand of differential customs duty along with interest in respect of the imports made during the above period under dispute; the Appellants have classified the imported goods under Tariff Item 9026 80 90 of the Customs Tariff; goods imported under each Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the decision of the Tribunal in the case of Siemens Ltd. (supra) and SPM India Ltd. (supra). 10. To have a proper appreciation of the facts of the case, it will be useful to have a look at the rival classification. We find that rival contentions 9026 and 9032 appear in the Tariff as follows: 9026 9026 Instruments and apparatus for measuring or checking the flow, level, pressure or other variables of liquids or gases (for example, flow meters, level gauges, manometers, heat meters), excluding instruments and apparatus of heading 9014, 9015, 9028 or 9032 9026 10 For measuring or checking the flow or level of liquids 9026 10 10 Flower meters 9026 10 20 Level gauges 9026 10 90 Other 9026 20 00 For measuring or checking pressure 9026 80 Other instruments or apparatus 9026 80 10 Heat meters 9026 80 90 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by the Department because these are only measuring instruments and do not have any control on the operation of the main engines. Per contra, the Department submits that in view of the advertisement / catalogues available on the website of the appellants, the instruments are useful not only in measuring different parameters but play a pivotal role in controlling the engines themselves. We find that in terms of Chapter Note 7(a) to Chapter 90, instruments and apparatus which automatically control the variables of liquids or gases and which are designed to bring to maintain a desired value by constantly measuring. We also find that in terms of HSN Explanatory Notes to Chapter 90, explains that in order to fall under Chapter 9032, the impugned instrument should have three devices i.e., for measuring, comparing the measurement with the desired value and start or stop the engine to which they are attached. As per the submissions of the appellants, the instruments have mechanism to measure and to throw information or signal in comparison to the desired parameters. Learned Authorised Representative for the Revenue submits that as per the literature available on the website, the instrum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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