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TMI Blog2018 (12) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... urgical, dental or veterinary sciences, including scientigraphic apparatus, other electro medical apparatus and site testing instruments'; per contra, it was the contention of customs authorities that the goods are 'microscopes classifiable under heading no 90118000 of the First Schedule to Customs Tariff Act, 1975 in the residual sub-heading within the heading 'compound optical microscopes, including those for photo microgravity, cinephotomicrography or micro projection.' 2. In this context, while putting forth the case of Revenue, Learned Authorised Representative places his arguments on the foundation of the decision of the Hon'ble Supreme Court in Mehra Bros v. Joint Commercial Officer [1991 (51) ELT 173 (SC)] that dealt with the scope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r identifying the appropriate heading, across time and place as these could well be reversed should the rates of duty also be. In such a dispute over the applicability of an exemption, the pursuit of maximising by Revenue and of minimising on the part of assessee lends an inherent bias which is best neutralised, on either side, by focusing on the resolution of the dispute in terms of the heading alone. 4. Complicating the contours of the dispute are the rival claim for determination under the residual entry in the two headings. The frail foundation of such an undertaking, as pointed out by the Hon'ble Supreme Court in Dunlop India Ltd & Madras Rubber Factory Ltd v Union of India and Others [1983 (13) ELT 1566 (SC)] '36. We are, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the article under a residuary head in order to charge higher duty is foreign to a proper determination of this kind, this Court will be loath to say that it will not interfere.' is not conducive to an easy resolution of the present dilemma. We, therefore, have to resolve the classification in terms of the heading itself. 5. The dispute does not travel beyond classification within chapter 90 of First Schedule to the Customs Tariff Act, 1975 which is that of 'optical, photographic, cinematographic, measuring, checking, precision, medical or surgical instruments and apparatus; parts and accessories thereof' and to be resolved is whether the impugned goods are 'compound optical microscopes' and, if they are not, the claim of the appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed acceptance of divinely ordained fate. The problem has repercussions that are not only genealogical but, at a macro level, impacting the productive future strength of the nation. According to Learned Counsel for appellant, the imported goods enable sighting of a single human sperm which is then isolated and subjected to process that makes it amenable to in vitro fertilisation and is, therefore, not restricted to enhancement of sense of sight but to act in tandem with the 'micromanipulator' for engineering the human sperm for the desired end. He contends that both functions are so equally important in the process for any one of them to be labelled as primary and that, being utilised by trained medical professionals, should find a place in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andates placement in their respective headings which does not arise in the present instance. The third rule is not relevant in the absence of any proposal to classify under the heading referred therein. The second rule is to be resorted to when the goods in question find sole, or principal, use with main goods of the chapter. In the admitted context of 'microscope' and 'micromanipulator' performing independent functions and the consequent lack of applicability of this rule, the disposition of 'parts and accessories' stand exhausted and precludes the impugned goods from being described as such. 11. According to Learned Authorised Representative, lack of coverage under the claimed classification suffices to uphold the re - determined heading ..... X X X X Extracts X X X X X X X X Extracts X X X X
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