Asian Tube Light (i) Pvt. Ltd. Vs. Collector of Customs - Court Judgment

Excerpt:
1. this is an appeal against the order of collector of customs, new delhi no. 20/86, dated 3-10-1986.2. ld. counsels stated that the appellants had imported an item described in the bill of entry as fluorescent tube circular. the following two issues have arisen in connection with this matter :- whether a "fluorescent tubes" can be considered to be an "electronic" item for the purposes of classification under custom tariff heading no. 85.18/27 as claimed by the importer/appellant; whether the imported "fluorescent tube" can be treated as "consumer goods" under the import-export policy for the year 1985-88.3. it was their contention that it was classifiable under heading 85.18/27(1) under category of electronic tube.this tube was part of a special lamp manufactured by them which consisted of electronic circuit, starter and relating fittings. such fluorescent tubes are energy saving devices and could also be termed as electronic lamps. they would like to show to the bench a sample and the catalogue and draw attention towards the test report issued by a scientist of central scientific instruments organisation which shows that the tube has two filaments on its ends which when heated emit electrons.this report was produced before the collector who has mentioned it but not recorded any finding thereon. it was their submission that the collector has erred in holding the item simply an electrical light emitting device and not electron tube.4. they would also like to rely upon the meaning of fluorescent lamp given in the dictionary of science, penguin edition and reproduced in the order.5. it was also their contention that the item was covered under the exemption notification no. 285/83 sr. no. 3 in view of the fact that it specifically mentions electronic valves and tubes (all kinds).6. it was their submission that the declaration made by them in the boe (bill of entry) and the invoice was correct and has to be accepted unless the department is able to establish that the goods were different as held by the supreme court in the case of s.s. enterprises [1994 (74) e.l.t. 794 (s.c.)].7. the tribunal has also held in a series of cases that a point of law can be raised at any point of time as evident" from the orders reported in the following cases: 1. 1991 (56) e.l.t. 31 (calcutta) nayek paper industries v. union of india 2. 1992 (58) e.l.t. 38 (bombay) union of india, v. sahaney steel and press . work ltd.(tribunal) j.k. batteries v. collector of customs(tribunal) echjay ind. ltd. v. collector of central excise, rajkot 5. 1994 (73) e.l.t. 536 (rajasthan) pollar marmo agglomerates v. union of india 8. it is submitted that para 7(13) of the import and export policy 1985-88 defines consumer goods as under :- ' "consumer goods" for the purpose of import policy, will mean consumption goods which can directly satisfy human needs without further processing; it would include consumer durables also.' 9. in view of this fact that this item is a part which along with other material parts such as electronic circuit, starter etc. are used in their factory for manufacture of the lamp, the goods cannot be termed as consumer goods.10. in fact the tube by itself cannot funtion without the electronic circuit etc. and is meant for pv application. a copy of the literature issued by m/s. tata b.p. solar india and central electronics ltd., government of india undertaking may also be perused in this connection.11. in the applicants case pv application means photo voltaic application as evident from the literature from m/s. hosxan corporation japan.12. ld. dr drew attention towards the order-in-original and in particular to the discussion and finding portion. he further submitted that the wordings used in the catalogue are important and show that the imported tube is marketed in the open market for use in house, shops and showrooms etc. therefore it becomes consumer goods falling under the purview of appendix 2b (12).13. furthermore, dgtd has also clarified that such tubes fall under this appendix and this clarification was obtained by the importer himself from dgtd who is authorised for giving clarification as per import policy 1985-88 as the adjudicating authority has correctly relied on it.14. as regards notification no. 232/83 (sr. no. 3) it may be observed that fluorescent tubes as such find mention under broad heading of 'discharge lamps' and thus fall under 85.39 of hsn whereas electronic valves/tubes are mentioned under heading 85.40. it clearly implies that fluorescent tubes which is a discharge tube is distinct from electronic valves and tubes. secondly, there is nothing to show that the imported item is actually an electronic valve/tube which are entitled for the benefit of the notification. that in the market parlance and in the commercial understanding the impugned goods are known as fluorescent tubes is required to be kept in view in the light of ratio of following judgments:(sc) rajasthan spinning & weaving mills ltd. v. cce it was therefore his submission that the benefit of 232/83 has been rightly denied.15. he would like to emphasise that since the subject tube is having wattage of 22 watts and by no stretch of imagination 22 watts can be termed as law wattage and there is nothing to prove that the tube is of high intensity. moreover, it cannot be put to pv application as pv stands for pico volt which is equivalent to a small unit of voltage 1 pv = 102-12 v whereas the voltage of the subject tube is 80 volts.therefore the tube falling under ogl is ruled out.16. ld. counsel stated that the term pv means photo electric in the context in which it is used here. the term pico voltage has a different meaning and application and has nothing to do with the term pv used in appendix vi.17. we have considered the above submissions. we observe that ld.counsel's contentions have strong force. the ld. collector has not correctly distinguished between electronic items and other electrical items.18. as already held by us in the case of m/s. photo equip recently electronics is a branch of a broader electrical field and those items are generally considered as electronic which incorporate or include a semi-conductor device in their electric circuit or emit a controllable stream or beam of electrons, electrons in such cases can move within the semi-conductor or gas or vaccum.19. the ieee new standard dictionary of electrical, electronics and computer terms defines an electron tube as a 'device in which conduction by electron takes place through a vaccum or gaseous medium within a gas tight envelope'.20. furthermore, as already held in the above case electron tubes have a wide variety of applications including lighting and photography.21. in the present case, it appears that the department has itself got a sample tested in the csio laboratory of csir (government of india) as is evident from the test report submitted by it under bill dated 5-7-1989. this test report has been mentioned by the collector and relied upon by the appellants which reads as follows :- the tube is made of two filaments at its ends. these filaments are coated with alkaline earth oxide powder and surrounded by an inert gas. when these filaments are heated, they emit electrons. this phenomenon is known as thermionic emission which is the basis of all such electron tubes. the inner side of the tube is coated with the luminous material and when the electron strike their energy is converted into light energy.22. the fact that it is fluorescent also does not alter the basic fact that it is an electronic tube. in fact its full description would be "fluorescent electron tube".23. the pamphlet produced by the appellant is titled as asian circuit lamp with flicker free electronic starter. the other pamphlets produced also give the general description of photo voltaic systems and various equipments and appliances including solar pv lanterns and other photo voltaic application system. the controversy about the acronym tv during the course of hearing can be settled w.r.t. these pamphlets and the wordings of the policy.24. it is obvious that pv as used in the policy does not refer to the unit called pico volt as it talks of pv applications and the acronym pv has been used to indicate photo voltaic applications in various fields indicated below.various brochures and pamphlets filed by the appellant show that fluorescent lamps find their use in photo voltaic applications in a number of systems and the pamphlets of udhaya solar pv lanterns also describes its electronic circuitry. the brochure issued by central electronics sahibabad (public sector entt.) describes solar pv systems and its uses in spv indoor lighting systems; inter pumping systems; cel solar lantern; rural telecom, and other areas covered by national technology mission. it also indicates other applications of solar photovoltaic systems as follows :- 25. the pamphlet issued by m/s. tata bp solar india ltd. also describes the use of photovoltaic systems in solar batteries, medical refrigerator etc.26. a pamphlet issued by m/s. hosxan photovoltaic systems also describes their uses and another issued by indian renewable energy development agency ltd., new delhi also refers to photovoltaic technology and pv systems.the ministry of non-conventional energy sources have launched programmes and its pamphlet describes what is a pv system and its applications. the use of the words pv applications in the import policy obviously refers to these type of applications and is not indicative of pico voltage- 27. again ld. counsel's arguments that wattage and voltage should not be confused has a strong force. (ii) ld. dr's arguments that the test report shows the wattage as 22 watts and voltage as 80 volts, and therefore, it goes out of the purview of ogl does not appeal because low and high are relative terms and 22 watt is commonly considered as a low wattage for either reading or lighting in house.28. that a fluorescent electronic lamps (using such tubes) is of high luminous efficiency is again apparent from above quotations from the pamphlet issued by the central electronics ltd. and show that a 9 watt cfl can give light equivalent to 60 watt incandescent lamp and in the case of electronic lantern 7 watt cfl can give light output equivalent to a 40 watt incandescent bulb. the claim of udhaya solar pv lanterns is that they have high efficiency cfl which gives output of 60 lumens per watt.29. ld. counsel is therefore, correct in pointing out that they are energy saving devices of relatively higher efficiency.30. lastly they cannot be considered as consumer items as they are not directly used as such by the general consumer, but are utilised as a part of the fluorescent lamp which are then marketed for satisfying human wants directly.31. the ld. counsel is also correct in pointing out that a point of law can be raised even at the appellate stage.32. we also observe that the appellants have produced a statement of items issued by the director of industries in respect of m/s. asian tube light (i) pvt. ltd. w.r.t. notification no. 232/83 as amended by notification no. 285/83. these items include electronic valves and tubes (all types) at sr. no. 3 and various other electronic items including fluorescent display devices (at sr. no. 9) and the end use has been shown as electronic lantern/emergency lamp etc. coming to the notification no. 232/83 (as amended) since admittedly sr. no. 3(b) of the table annexed to this notification covers electronic tubes (all types), therefore even fluorescent electronic tubes will get covered under this entry.33. in view of the above position, the impugned orders are set aside and the appeal is accepted.

Judgment:
1. This is an appeal against the order of Collector of Customs, New Delhi No. 20/86, dated 3-10-1986.

2. Ld. Counsels stated that the appellants had imported an item described in the bill of entry as fluorescent tube circular. The following two issues have arisen in connection with this matter :- Whether a "fluorescent tubes" can be considered to be an "Electronic" item for the purposes of Classification under Custom Tariff Heading No. 85.18/27 as claimed by the importer/appellant; Whether the imported "fluorescent tube" can be treated as "consumer goods" under the Import-Export Policy for the year 1985-88.

3. It was their contention that it was classifiable under Heading 85.18/27(1) under category of electronic tube.

This tube was part of a special lamp manufactured by them which consisted of electronic circuit, starter and relating fittings. Such fluorescent tubes are energy saving devices and could also be termed as electronic lamps. They would like to show to the bench a sample and the catalogue and draw attention towards the test report issued by a scientist of Central Scientific Instruments Organisation which shows that the tube has two filaments on its ends which when heated emit electrons.

This report was produced before the Collector who has mentioned it but not recorded any finding thereon. It was their submission that the Collector has erred in holding the item simply an electrical light emitting device and not electron tube.

4. They would also like to rely upon the meaning of fluorescent lamp given in the Dictionary of Science, Penguin Edition and reproduced in the order.

5. It was also their contention that the item was covered under the exemption Notification No. 285/83 Sr. No. 3 in view of the fact that it specifically mentions electronic valves and tubes (all kinds).

6. It was their submission that the declaration made by them in the BoE (Bill of Entry) and the invoice was correct and has to be accepted unless the department is able to establish that the goods were different as held by the Supreme Court in the case of S.S. Enterprises [1994 (74) E.L.T. 794 (S.C.)].

7. The Tribunal has also held in a series of cases that a point of law can be raised at any point of time as evident" from the orders reported in the following cases: 1. 1991 (56) E.L.T. 31 (Calcutta) Nayek Paper Industries v. Union of India 2. 1992 (58) E.L.T. 38 (Bombay) Union of India, v. Sahaney Steel and Press . Work Ltd.(Tribunal) J.K. Batteries v. Collector of Customs(Tribunal) Echjay Ind. Ltd. v. Collector of Central Excise, Rajkot 5. 1994 (73) E.L.T. 536 (Rajasthan) Pollar Marmo Agglomerates v. Union of India 8. It is submitted that Para 7(13) of the Import and Export Policy 1985-88 defines consumer goods as under :- ' "Consumer goods" for the purpose of import policy, will mean consumption goods which can directly satisfy human needs without further processing; it would include consumer durables also.' 9. In view of this fact that this item is a part which along with other material parts such as electronic circuit, starter etc. are used in their factory for manufacture of the lamp, the goods cannot be termed as consumer goods.

10. In fact the tube by itself cannot funtion without the electronic circuit etc. and is meant for PV Application. A copy of the literature issued by M/s. Tata B.P. Solar India and Central Electronics Ltd., Government of India undertaking may also be perused in this connection.

11. In the applicants case PV application means Photo Voltaic application as evident from the literature from M/s. Hosxan Corporation Japan.

12. Ld. DR drew attention towards the order-in-original and in particular to the discussion and finding portion. He further submitted that the wordings used in the catalogue are important and show that the imported tube is marketed in the open market for use in house, shops and showrooms etc. Therefore it becomes consumer goods falling under the purview of Appendix 2B (12).

13. Furthermore, DGTD has also clarified that such tubes fall under this appendix and this clarification was obtained by the importer himself from DGTD who is authorised for giving clarification as per Import Policy 1985-88 as the adjudicating authority has correctly relied on it.

14. As regards Notification No. 232/83 (Sr. No. 3) it may be observed that fluorescent tubes as such find mention under broad heading of 'discharge lamps' and thus fall under 85.39 of HSN whereas electronic valves/tubes are mentioned under Heading 85.40. It clearly implies that fluorescent tubes which is a discharge tube is distinct from electronic valves and tubes. Secondly, there is nothing to show that the imported item is actually an electronic valve/tube which are entitled for the benefit of the notification. That in the market parlance and in the commercial understanding the impugned goods are known as fluorescent tubes is required to be kept in view in the light of ratio of following judgments:(SC) Rajasthan Spinning & Weaving Mills Ltd. v. CCE It was therefore his submission that the benefit of 232/83 has been rightly denied.

15. He would like to emphasise that since the subject tube is having wattage of 22 watts and by no stretch of imagination 22 watts can be termed as law wattage and there is nothing to prove that the tube is of high intensity. Moreover, it cannot be put to PV application as PV stands for Pico Volt which is equivalent to a small unit of voltage 1 PV = 102-12 V whereas the voltage of the subject tube is 80 volts.

Therefore the tube falling under OGL is ruled out.

16. Ld. Counsel stated that the term PV means Photo Electric in the context in which it is used here. The term Pico Voltage has a different meaning and application and has nothing to do with the term PV used in Appendix VI.17. We have considered the above submissions. We observe that Ld.

Counsel's contentions have strong force. The Ld. Collector has not correctly distinguished between electronic items and other electrical items.

18. As already held by us in the case of M/s. Photo Equip recently electronics is a branch of a broader electrical field and those items are generally considered as electronic which incorporate or include a semi-conductor device in their electric circuit or emit a controllable stream or beam of electrons, electrons in such cases can move within the semi-conductor or gas or vaccum.

19. The IEEE New Standard Dictionary of Electrical, Electronics and Computer Terms defines an electron tube as a 'device in which conduction by electron takes place through a vaccum or gaseous medium within a gas tight envelope'.

20. Furthermore, as already held in the above case electron tubes have a wide variety of applications including lighting and photography.

21. In the present case, it appears that the Department has itself got a sample tested in the CSIO laboratory of CSIR (Government of India) as is evident from the test report submitted by it under bill dated 5-7-1989. This test report has been mentioned by the Collector and relied upon by the appellants which reads as follows :- The tube is made of two filaments at its ends. These filaments are coated with alkaline earth oxide powder and surrounded by an inert gas. When these filaments are heated, they emit electrons. This phenomenon is known as thermionic emission which is the basis of all such electron tubes. The inner side of the tube is coated with the luminous material and when the electron strike their energy is converted into light energy.

22. The fact that it is fluorescent also does not alter the basic fact that it is an electronic tube. In fact its full description would be "fluorescent electron tube".

23. The pamphlet produced by the appellant is titled as Asian Circuit Lamp with Flicker Free Electronic Starter. The other pamphlets produced also give the general description of photo voltaic systems and various equipments and appliances including Solar PV lanterns and other photo voltaic application system. The controversy about the acronym TV during the course of hearing can be settled w.r.t. these pamphlets and the wordings of the Policy.

24. It is obvious that PV as used in the Policy does not refer to the unit called PICO VOLT as it talks of PV applications and the acronym PV has been used to indicate photo voltaic applications in various fields indicated below.

Various brochures and pamphlets filed by the appellant show that fluorescent lamps find their use in photo voltaic applications in a number of systems and the pamphlets of Udhaya Solar PV Lanterns also describes its electronic circuitry. The brochure issued by Central Electronics Sahibabad (Public Sector Entt.) describes Solar PV Systems and its uses in SPV Indoor Lighting Systems; Inter Pumping Systems; CEL Solar Lantern; Rural Telecom, and other areas covered by National Technology Mission. It also indicates other applications of Solar Photovoltaic systems as follows :- 25. The Pamphlet issued by M/s. Tata BP Solar India Ltd. also describes the use of photovoltaic systems in Solar Batteries, Medical Refrigerator etc.

26. A pamphlet issued by M/s. Hosxan Photovoltaic systems also describes their uses and another issued by Indian Renewable Energy Development Agency Ltd., New Delhi also refers to photovoltaic technology and PV systems.

The Ministry of Non-Conventional Energy Sources have launched programmes and its pamphlet describes what is a PV system and its applications. The use of the words PV applications in the Import Policy obviously refers to these type of applications and is not indicative of PICO Voltage- 27. Again Ld. Counsel's arguments that wattage and voltage should not be confused has a strong force.

(ii) Ld. DR's arguments that the test report shows the wattage as 22 watts and voltage as 80 volts, and therefore, it goes out of the purview of OGL does not appeal because low and high are relative terms and 22 watt is commonly considered as a low wattage for either reading or lighting in house.

28. That a fluorescent electronic lamps (using such tubes) is of high luminous efficiency is again apparent from above quotations from the pamphlet issued by the Central Electronics Ltd. and show that a 9 watt CFL can give light equivalent to 60 watt incandescent lamp and in the case of electronic lantern 7 watt CFL can give light output equivalent to a 40 watt incandescent bulb. The claim of Udhaya Solar Pv Lanterns is that they have high efficiency CFL which gives output of 60 lumens per watt.

29. Ld. Counsel is therefore, correct in pointing out that they are energy saving devices of relatively higher efficiency.

30. Lastly they cannot be considered as consumer items as they are not directly used as such by the general consumer, but are utilised as a part of the fluorescent lamp which are then marketed for satisfying human wants directly.

31. The Ld. Counsel is also correct in pointing out that a point of law can be raised even at the appellate stage.

32. We also observe that the appellants have produced a statement of items issued by the Director of Industries in respect of M/s. Asian Tube Light (I) Pvt. Ltd. w.r.t. Notification No. 232/83 as amended by Notification No. 285/83. These items include electronic valves and tubes (all types) at Sr. No. 3 and various other electronic items including fluorescent display devices (at Sr. No. 9) and the end use has been shown as electronic lantern/emergency lamp etc. Coming to the Notification No. 232/83 (as amended) since admittedly Sr. No. 3(b) of the table annexed to this notification covers electronic tubes (all types), therefore even fluorescent electronic tubes will get covered under this entry.

33. In view of the above position, the impugned orders are set aside and the appeal is accepted.