Judgment:
1. Ld. DR stated that the respondents had imported Ring Tube (Xenon Flash Tube) and claimed clearance under OGL Appendix 6(1) as parts on one hand and at concessional rate of duty in terms of Notification No.232/83, dated 18-3-1983 as electronic tubes falling under Sr. No. 3(a) and (b) on the other.
2. On examination, it was observed that the goods imported were nothing but discharge lamp and therefore, not covered by the above entry as electronic tubes. Accordingly, exemption benefit was denied and the goods were classified under Heading No. 85.18/27(4) as discharge lamp.
The Collector (Appeals) however, accepted their petition and granted the relief prayed for. Hence this appeal.
3. It was department's contention that the action taken by the Asstt.
Collector was correct.
4. A perusal of the catalogue shows that the goods have been manufactured by a firm engaged in the manufacture of bulbs. The name of the manufacturer is Key and Kwang Electric Bulb Factory Ltd. The catalogue also shows that the goods are used for producing high intensity light which is suitable for various arenas like photography, traffic, publicity, science, medicine etc. The capacitor discharge excites the electrons in the gas and when they return to ground level energy is released in the form of light. It is clear from this description that the item is nothing but a discharge lamp.
5. As per Chambers Dictionary of Science and Technology, 1984 page 398 an 'electronic tube' is an electronic device in which the electron conduction is in a vaccum or gas inside a gas tight enclosure. Its electronic characteristics are substantially dependent upon the ionisation of gas or vapour. These electronic valves and tubes are not used for the purpose of emitting light but for various industrial applications other than lighting and are known as triode, diode etc., depending upon number of electrodes used.
6. In CCCN, these items are assessable under heading as against discharge lamps which fall under Customs Heading 85.20 and CCCN Heading 85.32, and HSN Heading 85.40 respectively. Thus there is a distinction between electric light lamps and electronic valves and tubes. It is therefore, clear that the goods imported are discharge lamps used for lighting and not electronic tubes as contended by the importer; Hence they are not eligible for benefit of Notification No. 232/83.
7. The Ld. Advocate Sh. K. Kumar drew attention to the order-in-appeal and stated that the imported item is an electronic tube and not electric lamp. In support of this contention the appellants have produced a certificate dated 22-7-1985 issued by the D.O.E. as well as their catalogue before the authorities below. They had also produced a sample of the item in question and had given a demonstration before the Collector.
As rightly held by the Collector (Appeals) the eligibility to the Notification depends only on being shown whether the item is an electronic tube and its classification under heading or sub-heading of the trariff chapters or CCN or HSN is not of any relevance for the purpose of concessional assessment under the Notification.
According to the book 'Electronics in Industry' by George M. Chute and Robert D. Chute, 5th Edition at page 2 'ordinary electrical equipment enters the electronic class whenever its circuit includes an electron tube or solid state device'. This book also shows that some electric lights are electronic. The common incandescent light bulb is not electronic, for the electricity flows entirely within the metal filament. In contrast the fluorescent lamp is electronic for the light is produced by the action of electrons which flow through the internal space between the two ends of the lamp'.
8. The catalogue for "xenon flash tubes" shows the construction of the flash tube and its circuitry. It indicates that the electron flow excites the electrons in the gas and when these electrons return to the ground state the energy is released in the form of light. Thus, it is clear that these are electronic tubes and are eligible for concessional assessment under Notification No. 232/83.
9. Ld. Counsel also submitted that the certificate of an expert body like D.O.E. produced by them could not be lightly brushed aside and was required to be given due weight as held in the case of Orient Lithopress v. C.C. [1994 (71) E.L.T. 32 (Mad.)] : [1994 (64) E.L.T. 22 (Mad.)] with reference to DGTD certificate and in the case of Titan Watches [1992 (62) E.L.T. 741 (Tribunal)] and Vinplex Dye Chem. (P) Ltd. v. CV.C. with reference to the Certificate of Drug Controller.
10. It was also their contention that the fact that the supplier company makes bulbs and lamps also does not mean that it does not make electronic items.
11. He would also like to produce the catalogue of similar flash tubes manufactured by another company namely 'Heimann' (which is a leader in flash technology). This catalogue shows the item as Optoelectronic component.
12. He would also like to draw attention to the final Order No.C/31/1996-B of the Tribunal in the case of Electronitherm (I) Ltd v.C.C., Bombay in A. No. C/71/94-B2 which deals with an item falling under Chapter 85 having an electronic circuit and holds it to be classifiable under Heading 85.14 to show that classification is immaterial. Further Heading 85.18/27 includes various electric and electronic devices and therefore the fact that flash tube has been classified under 85.17/27 was of no relevance and would not exclude it from the purview of the Notification as rightly held by the Collector (Appeals).
The ld. counsel also drew attention to the 'Encyclopaedia Britannica' to emphasise that flash systems are of two main types (1) 'Flash Bulbs' and (2) 'Electronic Flash'; A Flash Bulb contains sealed wires with a filament and a pulse of current fires the flash; whereas in 'Electronic Flash' there is a high voltage discharege through the gas which produces flashes; And the imported item is of this type.
13. The ld. DR stated in reply that the letter of the D.O.E. can only be considered as advisory in Character and not a binding one as the job of determining eligibility to a Customs Notification was that of the Customs authorities. Furthermore, this letter only says that the description 'electronic valve and tube' (of either types) in the Notification would also cover flash tubes. It does not say that even an item found to be discharge lamp could be considered as an electronic item covered by the Notification.
14. He would also like to draw attention to the Illustrated Dictionary of Electronics 3rd Edition by Rufus P. Turner and Stan Gibilisco which shows that 'electronic tube' is the same as 'electron' tube or 'electron beam tube' such as beam-power tubes, klystrons, oscilloscope tubes, and TV picture tubes in which electron beam is generated and controlled.
15. The item being a discharge lamp is undisputably classifiable under Heading 85.18/27(4) which covers electric filament lamps and electric discharge lamps (excluding infra-red and ultra-violet lamps) - are lamps. As such it falls outside the scope of the Notification 232/83 which does not cover such an item.
Further in CCCN/HSN also discharge lamps include flash lamps and the ld. Collector erred in setting aside AC's order which may be restored.
16. We have considered the above submissions. We observe that the word 'Electric' or 'Electrical' is a generic term of wide coverage and 'electronics' is an area of specialisation within the (broader) electrical field. In other words, all electronic items are electric in a general sense but all electric or electrical items are not electronic. This is the common understanding of those engaged in this trade (and the circuit diagram in the Heimann Catalogue indicates the same). In the industrial as well as the scientific and technical field also this is kept in view and an item is generally treated as electronic if a semi-conductor device is incorporated in it or is included in its circuitry/or a controllable electron beam is generated in it or by it (as evident from the technical literature quoted by both the sides as well). But such items continue to be treated as a sub-category or variety of broader field of electrical machinery and equipment as apparent from the fact that in the course of international trade this aspect stands recognised for customs purposes by virtue of the fact that Chapter 85 in CCCN and HSN covers 'ELECTRICAL MACHINERY AND EQUIPMENT AND PARTS THEREOF', and the chapter notes thereof refer to various items, circuits and assemblies and parts thereof including those which are normally considered as electronic. Chapter note 4 of HSN refers to 'Printed Circuits' having component such as inductances, resistors, capacitors other than semiconductor elements; Whereas chapter note 5 specifically refers to (A) "Diodes, transistors and similar semi-conductor devices" commonly known as 'electronic' items; (B) "Electronic integrated circuits and micro-assemblies". Again explaining the scope of chapter 85 HSN goes on to mention under 'General' (A) clause (6); that this chapter covers "Certain electrical goods not generally used independently but designed to play a particular role as components in electrical equipment e.g.
capacitors...diodes, transistors and similar semi-conductor devices...." 17. HSN Heading 85.39 covers "Electric filament or discharge lamps, including sealed beam lamp units and ultra-violet or infra-red lamps'; arc lamps" and states that "Electric light lamps consist of glass or quartz containers, of various shapes, containing the necessary elements for converting electrical energy into light rays (including infra-red or ultra-violet rays)" - ."The heading covers all electric light lamps, whether or not specially designed for particular uses (including flash light discharge lamps)". Further the heading also covers "filament lamps, gas or vapour discharge lamps, and arc lamps". Under clause (C) the Explanatory note covers "Discharge lamps, other than ultra voilet lamps". It also mentions that "These consist of a glass envelope (usually Tubular) or a quartz envelope (usually in an outer envelope of glass), furnished with electrodes and containing, under low pressure, either a gas which becomes luminous under the influence of an electric discharge or a substance which gives off a vapour having similar properties; certain lamps may contain both a gas and a vapour producing substance. Some lamps have valves for the removal of compounds resulting from the action of the gas on the electrodes; others may be vacuum jacketed or water cooled. In some cases the internal wall of the lamps is coated with special substances which transform the ultraviolet rays into visible light thus increasing the efficiency of the lamp (flourescent lamps). Some lamps operate on high voltages, others on low". "The principal lamps of this kind include (1) gas discharge tubes containing gases such as neon, helium, argon, nitrogen or carbon dioxide, including flashing discharge lamps used for photography or stroboscopic examination (2) sodium vapour lamps, (3) mercury vapour lamps and (4) gas filled dual lamps, in which the light is produced both by an incandescent filament, and a gas discharge." 18. "These lamps are used for many purposes; e.g. domestic lighting, street lighting, office, factory, shop etc., lighting; lighting of machines; and lighting for decorative or publicity purpose. The heading includes simple straight or curved tubes, and tubes in various complex forms (e.g. scrolls, letters, figures and stars)." Heading 85.40 includes "Thermionic, cold cathode or photo-cathode, valves and tubes (e.g. vacuum or vapour of gas-filled valves and tubes, mercury arc rectifying valves and tubes, cathode ray tubes, television camera tubes)." "This heading covers only those valves and tubes, which for different purposes, utilise the effect of electrons emitted from a cathode either in a vacuum or in gas." In the case of photocathode valves and tubes, photocathode is excited by the action of light.
"According to the number of their electrodes they are termed diodes, triodes, tetrodes, etc." 20. Heading 85.41 covers "Diodes, transistors and similar semi-conductors devices; photosensitive semi-conductor devices, including photovoltaic cells whether or not assembled in modules or made up into panels; light emitting diodes, mounted piezo-electric crystals.
21. And Heading 85.42 covers electronic integrated circuits and micro-assemblies.
22. All this goes to show that since in the HSN as well as in the Customs Tariff (patterned broadly on the CCCN / HSN) Chapter 85 covers electric machinery and equipment and parts thereof and includes electronic circuits and semi-conductor devices the above concepts have to be understood (and applied in the same way). Heading 85.18/27 of the Customs Tariff itself covers a number of electrical appliances and apparatus including electronic items and therefore the fact that the item was classified under this heading does not ipso facto debar it from being considered as an electronic item. In fact even its classification as "electric discharge lamp" would also not bar it from being considered as an electronic item for the word 'lamp' as used here (as in CCCN / HSN) includes filament bulbs as well as electronic tubes.
23. Again it also includes such bulbs and other devices which are used for lighting as well as those which are meant for specialised purpose/or for more than one applications. In other words, the fact that this item has multiple applications is not related to its identity and does not affect classification or its eligibility or otherwise to the Notification and is not a determining factor for our purpose.
Indeed the world of electronics is a fast expanding one and it is not surprising that the electronic discharge lamp including electronic flash tubes find such wide application in diverse fields as mentioned in the catalogues as well as in the CCCN/HSN.24. The letter of the Govt. of India, Deptt. of Electronics dated 22-7-1985 addressed to the respondents regarding flash tubes for electronic flash gun, is of course required to be considered but the ld. D.R. is correct in pointing out that their expertise lies in indicating whether an item was electronic or not and does not extend to determination of classification or eligibility or otherwise to the Notification determining the scope of the entry which is the basic function of the customs authorities. The letters from the expert bodies certainly are required to be given due consideration but the responsibility for assessment finally rests with the customs authorities.
The definition of 'electronic tube' or 'electron tube' given in the dictionary of electronics is a general one and indicates that it is such a tube in which an electronic beam is generated and controlled but does not help us to solve the controversy before us.
The flash tube construction and the flash tube circuitry as indicated in the catalogue is of greater importance; that such xenon flash tube converts electrical energy stored in flash capacitors into light flash and the degree of efficiency is not in dispute; whether emitted light extends through ultraviolet is immaterial for our purpose; what is significant to the fact is that the flash tube circuitry is in the nature of an electronic circuit. This is clear from the description of the construction of tube and the diagram of the circuit at An-nexure "A".
25. In so far as Encyclopaedia Britannica is concerned, its description of the flash systems is of direct relevance for our purpose and is reproduced below: Flash systems. Flash is a widely used artificial light source for photography, providing a reproducible light of high intensity and short duration. It can be synchronized with an instantaneous exposure. Being battery powered, small flash units are self-contained. The two main systems are flash bulbs and electronic flash.
Flash bulbs. The flash bulb consists of a small, oxygen-filled glass envelope containing two sealed-in wires with a filament, a firing paste, and a specific amount of aluminium or zirconium wire. A pulse of current through the lead-in wires fires the flash, making the filling wire burn away virtually instantaneously. The firing system is built into a flash gun, which consists of a small casing holding a battery circuit, a reflector, and the fitting to take the bulb.
Flash bulbs comes in various sizes.
Electronic flash. Electronic flash is a high-voltage discharge through a gas-filled tube; but, unlike a flash bulb, it can flash any number of times. A capacitor charged up to several hundred volts (by a step-up circuit from low-voltage batteries or from the line voltage supply) provides the discharge energy. The flash is triggered by a low-voltage circuit generating a high voltage pulse.
The light output of an electronic flash is comparable with that of a flash bulb, but its duration is much shorter.
26. The tribunal's order in the case of Electrotherm (I) Ltd. (supra) is not of much avail except to show that the circuit diagram therein is that of an electronic circuit in respect of an item which was held as classifiable under Heading 85.14.
27. The crucial aspect of our matter lies in description of the discharge lamp (other than ultraviolet lamp) in CCCN/HSN wherein they have described it as those consisting of a glass envelope (usually tubular) or a quartz envelope furnished with electrodes and containing, under low pressure, either a gas which becomes luminous under the influence of an electric discharge or a substance which gives off a vapour having similar properties. This fits in the description of the electronic flash tubes construction given in the catalogue. It is noteworthy that HSN also goes to show that the principal lamp of this kind included discharge tube containing gases such as argon, neon, helium, nitrogen and carbon dioxide including flash discharge lamp used in photography or stroboscopic examination purpose. Again this fits with the description of the item as xenon gas of the same family as neon argon, etc., and this discharge lamp is in the form of tube and electronic tube used for photography or stroboscopic examination. The HSN explanation showing that these lamps are used for many purposes including domestic lighting, street lighting, office, factory, shop etc., lighting; lighting of machines and lighting or decorative or publicity purpose. It includes simple, straight or curved tubes, and tubes in various complex forms. From the above discussion it is clear that the imported item is required to be treated as an electronic discharge lamp in the form of a tube falling under 85.39 of HSN and 85.18/27(4) under the Indian Customs Tariff.
28. Insofar as the Notification No. 232/83 is concerned, it exempts all goods falling within Chapters 38, 84, 85, 90 or 92 and other items falling under Chapter 85; that this exemption is subject to the condition that an officer not lower in rank than Joint Director in the Department of Electronics or the Govt. of India or any other specialised authority are satisfied that the importer is an Actual User (industrial) of the goods in question and certifies to this effect.
29. In the present case, therefore, the letter of the Government of India, D.O.E. issued on 22-7-1985 is relevant and important to the extent that it has been issued by one of the prescribed authorities but this certification was required from Actual User angle and not from classification angle or for certifying whether it was covered by Notification or not. However, it has not been disputed before us that the respondents are Actual Users (Industrial) and it appears that this aspect although relevant had been missed at the Asstt. Collector's level but noted by the Collector.
30. Subject to the satisfaction of this condition the imported item is apparently covered by Serial No. 3(b) which includes electronic tubes (all types) including cathode ray tubes, (but excludes TV picture tubes). The words 'all types' are significant and would cover such electronic tubes whether used in photography or otherwise i.e. whether used for lighting or other purposes.
31. In view of the above circumstances, we see no reason to interfere with the order passed by the Collector (Appeals). The department's appeal is rejected.