Usha Electronics Industries Vs. Commissioner of Customs - Court Judgment

Excerpt:
1. the issue involved in this appeal is classification of and imports which were made by the appellants. after hearing both sides it is found:- (a) the appellants had classified the entity described as 'image projectors' imported from thailand. they were claimed for assessment under heading 9008.30 of the customs tariff. the department was however of the view that the entities were spot lights/stage lights equipments classifiable under heading 9405.40 of the customs tariff and restricted in terms of exim policy 92-97 and were therefore liable for confiscation under section 111(d) of the customs act, 1962 and the importers liable to penalty under section 112(a) of the act. (b) the deputy commissioner who adjudicated the case after considering the submissions of the appellants and after.....

Judgment:
1. The issue involved in this appeal is classification of and imports which were made by the appellants. After hearing both sides it is found:- (a) The appellants had classified the entity described as 'Image Projectors' imported from Thailand. They were claimed for assessment under heading 9008.30 of the Customs Tariff. The department was however of the view that the entities were spot lights/stage lights equipments classifiable under heading 9405.40 of the Customs Tariff and restricted in terms of Exim Policy 92-97 and were therefore liable for confiscation under Section 111(d) of the Customs Act, 1962 and the importers liable to penalty under Section 112(a) of the Act.

(b) The Deputy Commissioner who adjudicated the case after considering the submissions of the appellants and after examining the representative samples found that it was noticed that the instrument does not have projection lenses which could be used for projecting an image or its enlarged version onto the desired surface or screen. It was also noticed that the instrument is basically designed for throwing out a focused beam of light at a spot, which could be a dancing hall, stage or discotheque. It has an inbuilt technical improvement of responding to intensity of the music whereby throwing of focused light through the instrument would be as pre the beat of the music. It does not have the provision for projecting transparency/slides etc. The instrument, therefore, does not answer to even the bare minimum requirement of a projector a projecting device and thereafter confirmed the classification under heading 9405.40 and imposed a redemption fine of Rs. 1,00,000/- and penalty of Rs. 5,000/-.

(c) The Commissioner (Appeals) after examine the samples and looking at the goods and its functions and working concluded:- "It thus weaves a variety of coloured lights. It also responds to sound and changes the pattern depending upon the rhythm of music, the acoustic decibel and the beat of the music. It does contain a lens, alongwith many reflectors to control and direct the various shade of lights and beam.

The appellant claimed its classification under heading 9008 as image projects. I referred to the explanatory notes to this heading which reads as the instruments of this heading re designed to project still image.

I observed that the said goods do not project still image. They project colour light patterns, which move and change continuously.

It is, therefore, specifically designed to be used in discotheque, stage and studios etc. and hence, to my mind and thinking, it is nothing but a specialized lighting instrument/lamp, appropriately classifiable under heading 94.05.

(a)(i) The Commissioner saw the samples from the considerable distance and did not ask the appellants to operate the lamp to demonstrate its precise function. Therefore it was wrong to hold that lamp did not posses a lens and lenses were shown to the Commissioner.

(ii) The lamps are not ordinary light or a spot light used on stages or dance floors but are a specialized light on which not only images change by sound of clapping or music but its intensity of the focus also expands. They are, therefore, not ordinary spot light but have advance technique and sophistication to merit classification under heading 9008.30 and will not fall any way under heading 9405.40 which was applicable to ordinary spot light.

(iii) As regards, the observation of the Commissioner have submit that the appellate authority did not made any of the submissions and did not considered them.

3. When the matter was called non appeared for the appellants. The DR was heard and it is found:- 3(a) The entity under import is not an image projector since there is no provision for projecting any still image as found by the lower authority HSN notes under 9008.30 clearly rule out the subject goods to be covered under that heading. On examining the notes under heading 9405.50 it is found that the heading that the notes provide for and read as follows:- "This group also includes searchlights and spotlights. These throw a concentrated beam of light (which can usually be regulated) over a distance onto a given point or surface, by means of a reflector and lenses, or with a reflector only. The reflectors are usually of silvered glass, or of polished, silvered or chromium-plated metal.

The lenses are usually plano-convex or stepped (Fresnel lenses.) Searchlights are used, e.g., for anti-aircraft operations, and spotlights, e.g., for stage sets and in photographic or film studios." These notes in the HSN under heading 9405.40, induce us to approve the classification as per the findings arrived at by the lower authorities after examining the function of the goods to be only under heading 9405.40 of the Customs Tariff.

(b) We are re-enforced in arriving on this classification, since heading 9405 comes later then the other corresponding entry 9008.30 claimed by the appellants, when we are apply the rules of interpretation of the Tariff.

(c) Since no fresh material has been brought before us by the appellants to negate the findings of fact as arrived at after examining the products as it appears from the order of the lower authority we can not upheld the plea that the Commissioner did not examine the goods as submitted by the appellants. There are no merits in the grounds taken.

4. In view of our findings the classification is confirmed under 9405.40 and the order of the lower authority is confirmed. The appeal is dismissed.