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TMI Blog2007 (7) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal was directed to decide on the classification issue de novo. Their Lordships remanded the case after noting that the Tribunal, in its earlier order, had not considered the manufacturer's literature/brochure/catalogue on Rigaku/fully Automated Sequential X-ray Spectrometer and the fact that the Spectrometer incorporated computer with software as integral part thereof. The remand was made with a rider to the effect that any opinion expressed by the Court with reference to the catalogue should not be treated as conclusive. It further appears from the Apex Court's judgment that the assessee raised alternative claim for classification of the apparatus under SH 9027.80 before the Apex Court. Without expressing any opinion on this aspect, their Lordships have observed that this tribunal can also consider the said claim of the assessee. 2. The relevant Tariff Heading (with Sub-Headings) are reproduced below: (a) Heading 90.22: Heading No. Sub-heading No. Description of article (1) (2) (3) 90.22 Apparatus based on the use of X rays or of alpha, beta or gamma radiations, whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ramics & refractories; chemicals & petroleum coal; electronic & magnetic materials; foodstuffs & agricultural produce; paper & pulp; environmental & forensic materials. The catalogue also gives an outline of the technique employed in the apparatus thus:- "Irradiating a sample with a beam of X-ray may induce secondary X-rays which are characteristic of the elements in the sample. By measuring the wavelength and intensity of these secondary (fluorescent) X-rays, a qualitative and quantitative analysis may be made of the sample. The elements from "F" through "U" may be analyzed in solids, powders or liquids". The catalogue further indicates that the apparatus incorporates a computer which automatically processes the spectra [obtained by irradiating the given sample with a beam of X-rays in the spectrometer] and subsequently identifies the elements present in the sample. For this purpose, standard element conditions are prestored in the computer. The computer calculates the concentration of each element present in the sample on the basis of a 'library' provided. These concentrations are then displayed on the CRT and printed out. 4. After referring to the above features of the equipm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 (S.C.) and C.C. (General), New Delhi v. Gujarat Perstorp Electronics Ltd. - 2005 (186) E.L.T. 532 (S.C.). 6. In his rejoinder, learned Counsel has fairly conceded that, as per HSN Notes, the subject goods can be classified under Heading 90.22 only. However, he argues, HSN Notes are not to be referred to, where the goods can be classified with reference to trade parlance as well as to Tariff entries read with Section Notes/Chapter Notes. 7.1 We have given careful consideration to the submissions. Admittedly, the spectrometer imported by the respondents is an apparatus based on the use of X-rays. Under Heading 90.22 of the CTA Schedule, apparatus based on the use of X-rays have been sub-divided, based on application. Those meant for computed tomography fall under SH 9022.12; those for dental uses fall under SH 9022.13; those for medical/surgical/veterinary uses fall under SH 9022.14 and those for other uses have been put under SH 9022.19. The Revenue (appellant) would like to have the subject goods classified under this last sub-heading inasmuch as the item is used for analytical purposes. From the manufacturer's catalogue/literature, we have clearly understood that the X-ray sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the HSN unless there be an express different intention indicated by the Central Excise Tariff itself. In the case of Gujarat Perstorp Electronics (supra), the apex court referred to HSN Notes also for resolving a classification dispute, after noting that the view taken by the Court in Wood Crafts Products (supra) on the applicability of HSN Explanatory Notes had been reiterated in subsequent cases reported in 1997 (91) E.L.T. 13 (S.C.) and 2002 (142) E.L.T. 181 (Tri.). The apex court's ruling in the cited cases is to the effect that, where the classification of goods under the Tariff is aligned with the internationally accepted nomenclature found in the HSN, any dispute relating to classification must as far as possible be resolved with reference to such nomenclature unless there is an express different intention indicated by the Tariff itself. In the instant case the classification under the Customs Tariff Act being aligned with that under the HSN, the dispute requires to be resolved with reference to HSN Explanatory Note. 7.3 As rightly pointed out by learned SDR, Heading 90.22 also covers special apparatus like X-ray spectrometry equipment used for the examination of crystallin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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