COMMISSIONER OF CUSTOMS, ICD Vs. KEIHIN PENALFA LTD.

JUDGEMENT

(1.) IN this Appeal filed by the Revenue, the issue involved is whether the Electronic Automatic Regulator imported by M/s. Keihin Penalfa classifiable under sub -heading 9032.89, as confirmed by the Commissioner (Appeals) under the impugned Order or is classifiable under sub -heading 8543.89 of the First Schedule to the Customs Tariff Act, as claimed by the Revenue. Shri M.P. Singh, learned Departmental Representative submitted that sub -heading 9032.89 covers other instruments and apparatus of Heading 9032 which applies to Automatic regulator or controlling instruments and apparatus; that as per Note 6 to Chapter 90, Heading 9032 applies only to

(2.) HE further, submitted that the impugned goods is an instrument to replace carburettor of automobile engine; that it does not have operative device; that it receives signals from remotely mounted sensor and gives signal to remotely mounted actuators and valves; that the impugned goods not only controls flow, but also regulates timing and fuel injection for optional engine efficiency and as such is not covered within the purview of Heading 90.32; that further, the impugned goods also performs functions not performed of the goods of the said Heading such as ignition, timing control and fuel Injection Control. Learned Departmental Representative also mentioned that the Commissioner (Appeals) has classified the impugned product on the basis of use of the final products, in which the impugned goods are used that is electronic control unit; that according to Rule (1) of the Interpretative Rules, the classification of the product shall be determined according to the terms of the Heading and therefore, before the impugned product can be classified under Heading 9032, it has to confirm to the heading 9032 which applies to automatic regulating or controlling instruments; that expert opinion need not be taken into consideration at all as the issue involved is the classification of the product under the Customs Tariff; that further the expert opinion is regarding the scope of the product in question and has been obtained by the respondents that too on his own. Finally, he relied upon the decision in the case of Escorts Ltd. v. Collector of Customs, New Delhi, 2000 ECC 504 (T) : 2000 (118) ELT 755 wherein it was held that Microsoft presetting unit for boring and milling tools type CGS 2040 -01 is also doing function other than measuring and checking and hence is classifiable under Heading 8479.89 and not under sub -Heading 9031.80 of the Customs Tariff.

(3.) ON the other hand, Shri Piyush Kumar, learned Consultant, submitted that the impugned product is a control device which regulates the flow of fuel/air supplied to the multipoint fuel injection system of the present day Euro II engines; that it optimizes the engine output and minimizes the emission level by constant monitoring and maintaining the flow of fuel/air at pre -determined level; that the fuel injection system has replaced the carburettor which was used in internal combustion engine; that earlier the engines were fitted with carburettor for supply of fuel to the ignition chamber; that now Multi Point Fuel Injection System is being used in place of Carburettor and performs the function of monitor and controller. In this regard, he also referred to a Journal Overdrive August, 2000 issue which refers to Electronic fuel injection. Learned Consultant further submitted that as per Note 6 to Chapter 90, the product in question is covered by Heading 90.32 as it regulates the flow of air and fuel; that Explanatory Notes of HSN pertaining to Heading 90.32 provides that the automatic regulator of the Heading are intended for use in complete automatic control system which is designed to bring a quantity, electrical or non electrical, to, and maintain it at a desired value, stabilized against any disturbances by constantly measuring its actual value; that they consists essentially of measuring device, an electrical control device and starting, stopping or operating device. He also mentioned that as -per ITC (HS) classifications of Import And Export Item electronic automatic regulators have been classified under Heading 903289.01. He also placed reliance on Board's Circular No. 49/3/97 -CX dated 9.5.97 wherein it has been opined that automatic regulating or controlling instruments and apparatus falling under Heading 9032 are primarily used for controlling/maintaining the flow, level, pressure or other variables of liquid or gases; that this Circular has been issued by the Board after consulting the Department of Electronics. He also mentioned that the product has been classified under Heading 90.32 in the Madras Customs House. Finally he relied upon the decision in the case of Eacom's Controls (India) Ltd. v. Collector of Customs, New Delhi, 1999 (109) ELT 805 wherein the parameters for classifying the product under Heading 85.43 has been laid down by the Tribunal. According to the said judgment, the following are to be regarded as individual functions;