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CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, MADRAS
V.P. Gulati, T.P. Nambiar, JJ.
Commissioner of Customs, Madras -Appellant
Versus
Advanced Radio Masts (P.) Ltd. -Respondent
Order No. 2447/97 Appeal No. C/1923/92-B, 2447 of 1997, 1923 of 1992
Decided On : 08-09-1997
R. Victor Thyagaraj
Per Shri V.P. Gulati :
The issue in the appeal relates to the rate at which the Auxiliary duty is to be charged in respect of the goods in question which have been classified under chapter heading 9030.40 and are chargeable to basic customs duty at the rate of 35% under Notification No. 104/90. The CVD duty chargeable is NIL. The Revenue seeks to charge the Auxiliary duty at the rate applicable in terms of Notification No. 27/91 i.e. @ 15% as under Notification No. 27/91. The notification 104/90 stands covered under this notification the goods have been assessed under that notification. The learned lower appellate authority however has held that the goods are covered for the purpose of levy of Auxiliary duty under Notification No. 23/91 and the Auxiliary duty chargeable in terms of that would be NIL. The lower appellate authority has allowed this benefit holding that the goods answer to the description "Electrical Measuring/checking/Analysing of automatically controlling instruments and apparatus. The description of such goods given under this notification is as under :-
"Electrical measuring, checking, analysing or automatically controlling instruments and apparatus" means :
(a) Instruments or apparatus for measuring or checking electrical quantities;
(b) machines, appliances, instruments or apparatus of a kind described in Heading No. 90.14, 90.15, 90.16, 90.17, 90.24, 90.25, 90.26, 90.27, 90.29 (other than stroboscopes), or 90.31, the operation of which depends on an electrical phenomenon which varies according to the factor to be ascertained or automatically controlled;
(c) Instruments or apparatus for measuring or detecting alpha, beta, gamma, X-Ray, Cosmic or similar radiations; and
(d) automatic regulators of electrical quantities, and instruments or apparatus for automatically controlling non-electrical quantities the operation of which depends on an electrical phenomenon varying according to the factor to be controlled."
The instruments in question as seen from the learned lower appellate authority's order are Spectrum Analyser and Modulation Analyser and these are for measurement of Radio Frequency, Audio Frequency, AF Power etc.
2. The learned SDR for the department has pleaded that since the goods in question for Customs Duty purposes have been assessed under notification No. 104/90, the levy of Auxiliary Duty would have to be at the rates which are applicable to the goods which are assessed under notification 104/90 as per notification 27/91. He has further pleaded that in terms of definition of Electrical measuring/checking/analysing of automatically controlling instruments, the goods in question which fall under tariff heading 90.30 stands excluded from the purview of this definition as given under notification 23/91.
3. The respondents is absent despite notice.
4. We have considered the pleas made. On a perusal of the order of the learned lower appellate authority, we observe that the benefit of notification 23/91 for assessment and NIL rate of duty so far as auxiliary duty is concerned would be available if the goods in question fall under definition of the Electrical Measuring/Checking etc. as given under this notification. As it is T.H. 90.30 is not mentioned under this definition. The only other description which could cover the goods is instruments or apparatus for measuring or checking etc. The Electrical quantities which have been referred to would be voltage or amperes or resistance or inductance etc. Here the goods are Spectrum Analyser which are complex instruments for checking Frequency of the Radio waves and these certainly cannot be equated with instruments of the type which have been described in the notification as above. Therefore the notification No. 23/91 would not be applicable. The only other notification therefore would be available is 27/91 and the respondents are required to pay the Auxiliary duty at the rate of 15%.
5. We therefore set aside the order of the learned lower appellate authority i
