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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 ..... 20/99 dated 28-2-1999 (serial 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der on the ground that the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subject instruments are neither blood gas analysers nor sodium potassium analyzer which function is based on the number of ion selective method an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemical 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 the words auto analyser appeared in the market referring to a particular type of medical equipment and remained till today, it would be absurd now to import any restrictive meaning to it contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 connection, let us go through the statement of Mrs. Sukhanya, Sr. Executive Purchase, dated 2-6-1999. She has confessed that in several instances description of the goods is requested to be changed from ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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/- on the impugned goods in terms of proviso to Section 28(1) of the Customs Act, 1962. In the light of conduct of the Respondents, there is ample justification for invoking proviso to Section 28(1) of the Customs Act, 1962, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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