Full Judgment
NEOTOX is not an electric vapour and gas alarm consisting of a detector and a sound or visual alarm, but "A PORTABLE BATTERY OPERATED EXHAUST GAS ANALYSER WITH INDICATOR & AUDIBLE ALARM". They, therefore, claimed classification of the goods under CTH 9027.80 together with exemption Notification 49/78. Benefit of clearance under OGL was also claimed.
Customs Authorities, however, classified the goods under CTH 85.31.80 denying also the benefit of Notification 49/87 on the ground that it is an instrument by itself which on detection of gases beyond recognised level sounds an alarm.
2. Arguing for the appellants, the ld. Advocate placed considerable emphasis on the fact that it is a gas analyser which are specifically covered under CTH 90.27 and fitment merely of an alarm may not take it out of the purview of that Chapter.
3. The ld. DR reiterated the department's arguments submitting that basically it is to warn workers of the presence of hazardous gases to ensure their safety and therefore it would be correctly classifiable under CTH 85.31.
4. We have heard both sides. For the sake of clarity, we are extracting below the relevant parts of the catalogue itself: The catalogue further indicates that the instrument is basically an alarm system which being compact is expected to warn the workers to protect themselves from hazardous gases when the percentage of hazardous gases in the atmosphere exceeds safety limits. The catalogue thus indicates : 5. The impugned goods therefore basically are instruments to warn people of the presence of hazardous gases when the percentage of hazardous gases exceeds safety limits. CTH 90.27 deals with instruments and apparatus for physical or chemical analyses. HSN Notes do refer to gas and smoke analyses apparatus under CTH 90.27, but reference is only to such goods which are used to analyse combustible gases or composite product, glass furnaces, etc., in particular for determining their content of Carbon dioxide, Carbon monoxide, oxygen, nitrogen or hydrogen. HSN Notes themselves at Page 1515 indicate that the heading covers gas or smoke analyser apparatus that is directly concerned with furnace gas analyses etc. While referring to electronic smoke detector, the HSN Notes again indicate that the electronic smoke detector fitted with an alarm fall in 85.31. CTH 85.31 on the other hand covers electric sound or visually signaling apparatus. The HSN Notes at Page -1384 covering CTH 8531 specifically indicate the electric vapour or gas alarms consisting of a detector or a sound or visual alarm to warn the presence of hazardous gaseous mixture remain classified under CTH 85.31.
6. Ld. Advocate placed considerable emphasis on the fact that impugned goods were analyses which analyse the percentage of gases. In order to function as an alarm system, however, analyses is basic to this operation. An alarm system first undertakes measurement or analyses and then sounds an alarm. The catalogue itself indicates that world wide, the danger associated with gas hazards has made governments, in turn, introduce safety legislation to protect the workers. The catalogue also indicates a worker with a NEOTOX in use with ear piece for exceptionally noisy environments. It can, therefore, be seen that this battery operated instrument is carried by the workers, and when the percentage of hazardous gases exceeds the safety limits, both the visual sign appears on the monitor and an alarm is also sounded. In this context, therefore, the instrument basically is not a mere analyser but analyser for the purpose of acting as an electric sound and visual signaling apparatus, which would be more appropriately covered under CTH 85.31.
7. Similarly, we do not find any infirmity in the Collector's Order rejecting the claim for clearance under OGL. In the Appeal memo they have claimed that goods would be entitled to clearance under Appendix 6 Para 47(4) as portable gas and combustion analyser. Heading 47 covers energy savings/consumption equipment. The impugned goods basically are alarms and therefore we do not find any infirmity in Collector rejecting the plea for clearance under OGL.
8. Considering, however, the facts and circumstances of the case, we reduce the redemption fine from Rs. 75,000 to Rs. 35,000 (Rupees Thirty Five Thousand only). The impugned order is, subject to the modification, otherwise upheld and appeal is rejected.