TaxTMI 
TaxTMI 
2016 (5) TMI 394
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....ent orders as not maintainable and directed the lower authority to pass speaking order under Section 17(5) of Customs Act 1962. 1.1. Thereafter Deputy Commissioner, Group 5A, Bangalore Air Cargo Complex passed an order-in-original No. 761/2013 dated 31.08.2013 (issued on 24.09.2013) inter alia holding that the Photo Sensor imported earlier by M/s. Molex India Pvt. Ltd., Bangalore under various bills of entry are rightly classifiable under CTH 9031.8000. 1.2. The appellants were aggrieved by this order dated 31.08.2013 passed by Deputy Commissioner in case of classification of Photo Sensors which were ordered to be classified under 9031.8000. Thereafter against this order the appellants namely M/s. Molex India Pvt. Ltd. went in appeal before Commissioner (Appeals), who vide the Order No. 06/2014 dated 16.04.2014 rejected the appeal of the appellants. 1.3. M/s. Molex India Pvt. Ltd. are now before this Tribunal challenging the order of Commissioner (Appeals), who sustained the Deputy Commissioners Order inter alia holding Photo Sensor to be classified under Chapter 9031.8000. 2. Appellants today during hearing have shown the item also, which they are calling as Photo Sensors and....
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....Mr W.J. Dolbeer, Manager Contracts, AVEX Electronics, 4807 Bradford Drive Huntsville, Alabama 35805, USA, wherein the issue has been mentioned as below: 'Whether the photo sensor is properly classifiable within heading 8541, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for photosensitive semiconductor devices; or classifiable within heading 8536, HTSUSA, which provides for electrical apparatus for switching electrical circuits.' This Ruling issued by Director Rulings Division holds that Photo Sensor at issue is properly classifiable within subheading 8541.40.80, HTSUVA, which provides for optical couples isolators. 2.3. Appellants are also referring to HSN Notes with reference to Heading 8541 and it's Section (B) mentions Photosensitive Semiconductor Devices. The appellants here refer to special categories of photovoltaic cells, which are mentioned as photocouples and photorelays; they state that their item is photosensitive semiconductor devices in the category of photocouples and photorelays consisting of electroluminescent diodes combined with photodiodes, phototransistors or photothyristors. Let us here quote the said HSN Explanatory No....
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....cal. 4.1.1. Further impugned order-in-appeal dated 16.04.2014 in para 6 quoting Explanatory Notes to HSN to CTH 9031 (I)(A)(7) writes as below: "Dial indicating comparators, micrometric devices, electronic, opto-electronic and pneumatic sensors, whether or not automatic, as well as all devices or instruments for measuring length, angles or other geometrical quantities using such sensors. The heading also includes recording comparators, and comparators fitted with a mechanical device which conveys mass produced parts to the comparator and eliminates defective parts. However, this heading does not include the dial type comparators for use in the hand described in Item (4) of Part (D) of the Explanatory Notes to heading 90.17 (see exclusion (d) above)". Commissioner (Appeals) in this Order-in-Appeal further in para 6 writes as below: "As HSN includes sensors under CTH 9031, the appellant's contention of disputing the classification of sensor under CTH 9031 and contending to classify under CTH 8548 is not legally sustainable. The appellants contention that the device is only a semiconductor device meriting classification under Heading 8541 4090 is not acceptable as the device....
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..... Vs. CC (I&G), New Delhi [2015 (325) E.L.T. 179 (Tri.-Del.)] saying that the said decision of CESTAT, New Delhi held that oxygen sensors are to be classified under Chapter Heading 9031 and not under Chapter 90.27 of the Customs Tariff. It is to be noted that in this decision of CESTAT, Delhi the subject item was oxygen sensor and not the impugned item which is a photo sensor. In that decision the dispute was whether the item deserves classification under Chapter Heading 9027 or 9031. There was no reference to the Chapter Heading 8541. Therefore, this decision of CESTAT, New Delhi is not relevant for the present facts. 4.5. The appellants have shown the item physically to the Bench. The appellants have presented the Explanation on the item by an expert Associate Professor of Centre for Electronics Design and Technology, Indian Institute of Science, Bangalore, who says that it is a photo sensitive semi conductor device. He has further certified as below: "The products enclosed are Sensors which are nothing but photo sensitive semi conductor devices. This sensor assembly performs the function of sensing by emitting and receiving lights between LED and Phototransistor which are pla....
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....s specifically mentioned under the name of photocouples saying that it consists of electroluminescent diodes combined with Photodiodes, Phototransistors or Photothyristors. Here item consists of LED (Light Emitting Diode, which is nothing but electroluminescent diode as mentioned in the Explanatory Notes quoted above) and phototransistor. In this device, light passes through LED and phototransistor receives the light. In this way the item gives a signal, whenever light is obstructed, when some other substance or a thing comes in between. In this way whenever there is obstruction and there is no signal received by phototransistor, the outcome again will be a kind of signal and that is used in signal receiving machines/instrument to know that how many times there is restriction/obstruction in receiving light. In this way this item is being used by the appellants for manufacturing harness connectors which are then supplied to ATM manufacturing companies. 5.2. Revenue's argument is that the item in question is covered under Chapter Heading 9031.8000 saying that it is a measuring and checking instrument, which is the specific description for Chapter Heading Entry 9031. Here Revenue ref....