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TMI Blog2018 (11) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... om the picture of machine and its diagrams. It has thus necessarily to go under the category of not elsewhere specified under 9031. The lower authority viz the AC has therefore rightly concluded that the machine in question is classifiable under CTH 9031." 2.1 Appellants filed a Bill of entry No 677731 dated 21.01.2008 for clearance of "Helium Leak Testing Machine Twin Chamber with Recovery System" claiming classification under CTH 90268090 and exemption under Notification No 24/2005-Cus (S No 31). On the basis of objection raised by CRA, the classification of the said machine was amended to 9031 with basic custom duty @ 7.5%. The matter was adjudicated by the Assistant Commissioner after following due process of law and demand of differential duty to tune of Rs. 16,05,177/- along with applicable interest was confirmed by the Assistant Commissioner. 2.2 Aggrieved by the order of Assistant Commissioner, appellants filed the appeal to Commissioner (Appeal), who dismissed the appeal holding as stated in para 1 supra. 2.3 Against the said order of Commissioner (Appeal) appellants are in appeal before us. 3.1 In their appeal, appellants have challenged the orders of Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as "A device for measuring and sometimes also recording and controlling the value of quantity under observation." x. They also rely on the following authorities in their support: a. Commissioner of Customs Bangalore vs SPM India Ltd [2007 (211) ELT 573 (T-Bang)]; b. Hindustan Machine Tools Ltd vs Collector of Customs Madras [1987 (28) ELT 151 (T)]; c. Bajaj Tempo Ltd vs Collector of Customs, Bombay [1997 (910 ELT 111 (T)]; d. Kinetic Engineering Ltd vs Collector of Customs [1988 (37) ELT 61 (T)]; e. Collector of Customs vs Escorts Limited [1990 (49) ELT 223 (T)]; f. Collector of Customs vs Technological Centre [1989 (44) ELT 116 (T)]; g. Bajaj Auto Ltd vs Collector of Customs, Mumbai [2000 (125) ELT 821 9T)]; 4.1 We have heard Shri S Narayanan Advocate for the Appellant and Shri S R Nair, Authorized Representative for the revenue. 4.2 Arguing for the appellants learned counsel submitted that a. the item under import is "Double Chamber Helium Leak Detector System" and since it functions specifically to measure the flow of gas 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 cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in appeal and also during the course of arguments. Since the issue for determination is with regards the classification of an item under importation, before proceeding further to have better and complete understanding of the item it is necessary to refer to the technical literature available in respect of the item, which was produced during the course of arguments and has been reproduced below: 5.2 From the perusal of the complete technical literature it is quite evident, that item under importation, cannot be called an instrument or apparatus as understood in common parlance. Even going by the definition of the term instrument as referred to by the appellants in their submissions i.e. ""A device for measuring and sometimes also recording and controlling the value of quantity under observation." The item imported fails to qualify as an instrument because the item is itself not a device, but a combination of various instruments, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce should qualify to be an item classifiable under heading 9026. The argument of counsel did not appealed to us for the reason that detection of leak was not on the account of any measurement of helium gas flowing in the radiator, but was by way of determining the traces of helium in the chamber in the which radiator, being tested was placed, by using high intensity, high performance Mass Spectrometer. 5.8 Heading 9031 reads "Measuring or Checking Instruments, Appliances and Machine, not specified or included elsewhere in this chapter; Profile Projectors". In fact as per the chartered engineer certificate, and technical literature produced, the item imported, is Machine or Instrument, for checking or measuring leakage and hence is more appropriately classifiable under this heading. 5.9 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 {J M Baxi & Co [2015 (318) ELT 688 (T)]} and the Chartere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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