ORDER

A.J.F. D'Souza, Member (T)

1. The Revision Application dated 19th December, 1978 against order-in-appeal No. C. 3/346/78 dated 29-6-1978 passed by the Appellate Collector of Customs, Madras has been transferred by the Govt. of India to the Tribunal for disposal in terms of Section 13 IB (2) of the Customs Act, 1962.

2. The issue for determination in this appeal concerns the classification of Winker-Type Spark Bulbs for 'ERMA' Photoelectric Colorimeter model AE-11. A consignment of 685 pieces of these bulbs were imported by Post Parcel No. 149446/76 and was assessed to duty under Item 85.18/27(4)-CTA 'Electric Filament Lamps' at 120% and c.v. duty under Item 32(4)-CET as 'Electric Lighting and Fluorescent Lighting Tubes' at 30%. Duty was paid under Slip No. 49446 dated 21-8-1976. A refund was claimed on the ground that these bulbs should be considered as component parts of the Photoelectric Colorimeter falling under heading 99.28(4) and they were not classifiable under heading 85.18/27(4) of the CTA with countervailing duty under Item 32-CET. The Assistant Collector stated that on examination the parcel was found to contain filament lamps and was correctly assessed, as heading 85.18/27(4) specifically covers 'Electric Filament Lamps'. The claimant also admits that the lamps contain filaments enveloped by glass, although they stress that these are not considered as conventional Electric Lighting Lamps because of the special features, namely, the structure, the alignment of the filament of the glass chosen for the envelope for the purpose of activating the optical system of the Colorimeter, through a scientific phenomenon of emitting spectrum energy rays of a range within 350 mu to 660 mu, without casting any shadow and having less absorption of light energy in the ultra violet region." The contention of the claimant that Infra-Red and Ultraviolet bulbs are excluded from heading 85.18/27(4) and the goods are thus automatically excluded, was not accepted as this heading is specific for all Electric Filament Lamps and Electric Discharge Lamps. He, therefore, rejected the claim for reassessment under heading 90.29 and also confirmed assessment under CET 32 for purposes of countervailing duty, as the goods are specifically covered by it. He, consequently, also rejected the claim for refund. These pleas were reiterated before the Appellate Collector by the appellants. They also produced a catalogue showing that the bulb acts not only as indicator or illuminator but is an integral part of photoelectric colorimeter, of which it is an integral part ; and affected that the appropriate assessment should be heading 90.25 (1). They also referred to CBEC Ruling No. 850-Cus. 1/45 dated 15-10-1945 stating that electric bulbs for general illumination purpose under Item 60(2) and bulbs specially designed for scientific etc., apparatus, whose purpose is different (though provision of light may be included) are not classified under Item 60(2); and also Madras Customs House Tariff Circular 26/771 that the design of the article and the intention of the manufacturer should be taken into account. The trade name, usage and technical opinion given in the catalogue show that the bulbs are for the colorimeter. Therefore, the bulbs are correctly classifiable under heading 90.25(1) read with 90.29 and 90.28(4). They also claimed that Item 60(2)-ICT has been replaced by heading 85.18/27(4)-CTA. The order of the Appellate Collector reads as under -

"As per para 2 (a) of chapter 90 "Parts or accessories constituting themselves machines, appliances, instruments or apparatus (including optical elements of Heading No. 90.01 or 90.02) of any particular heading of this chapter or of Chapter 84, 85 or 91 (other than heading Nos. 84.65 and 85.28) are to be classified in that heading. Electric Filament lamps or bulbs and by themselves independent units or appliances capable of use wherever required. They fall specifically under Heading 85.18/27(4)-CTA and even if they are parts of photoelectric colorimeters falling under Heading 90.28-CTA by virtue of para 2 (a) of chapter 90, parts or accessories constituting themselves appliances of any particular heading of chapter 90, 84, 85 or 91 (except 84.65 and 85.28) are to be classified in that heading. As such, the bulbs under reference are correctly classifiable under heading 85.18/27(4)-CTA plus countervailing duty under Item 32-CET as has already been done. The appeal is, therefore, inadmissible and is accordingly rejected."

3. In the present appeal, the earlier contentions have been reiterated. It is pointed out that the ruling in C.B.E.C. No. 850-Cus. 1/45 dated 15-10-1945 was cancelled only on 8-8-1977 vide Tariff Advice 5/77, whereas the parcel was assessed on 9-9-1976 when the ruling was fully operative and the goods deserve assessment under heading 90.25 (1)-CTA. On 6-2-1978, a detailed reference was made to the Collector of Customs, Madras regarding the correct classification of these bulbs, specially designed for fitment into the colorimeter, and keeping in mind the Board's ruling specifically excluding such bulbs from Item 60(2)-ICT [which is akin to heading 85.18/27(4)-CTA] and that such bulbs will fall under Item 72(2)-ICT [which is equivalent to heading 90.25 (1)]. Inter alia, it was also pointed out that the prohibitive customs duty and countervailing duty, amounting in all to 186%, on these indispensable parts of colorimeters would hamper instead of encouraging the National Policy on Science and Technology. In his reply dated 29-9-1978, the Collector stated that heading 85.20-C.T.A. covers all electric filament lamps whether or not specially designed for particular uses (page 1451 Vol. 3 CCC N. Explanatory Notes). The 1945 Advice has been cancelled under Public Notice 197/77 and the 1953 Advice [classifying sodium vapour lamps for laboratory instruments under Item 77(2)-lCT equivalent to Item 90.25(1)-CTA] became otiose with introduction of the Customs Tariff Act, 1975 and in view of Sr. No. (2), Vol. 3 CCCN Explanatory Notes page 1452. Being either vacuum or gas filled bulbs, they are liable to countervailing duty under Item 32-CET. From this reply, the appellants contend that assessment on 9-9-1976 of these goods under Item 85.18/27(4) and Item 32(1) CET is quite incorrect.

4. Shri M.K. Jain, Partner of the appellant firm, repeated the contentions in the written appeal. He stressed the fact that the Board's clarification of 15-10-1945 that special types of bulbs were not electric lighting bulbs under the old Tariff Item 60(2), was cancelled only in 1977, after the subject import. The benefit should, therefore, be given under the CTA, which came into force on 2-8-1976 and had a corresponding Item 85/27 (4), which should also not cover such bulbs. Shri Jain also relied on 1983 ELT 575 and 590, wherein the Tribunal held that "Blood counting chambers" and "pipettes" cannot be taken as general laboratory glassware and were classifiable under Heading 90.17/18 or 90.25 and not 70.17/18. He argued that the colorimeter is covered by Heading 90.29 read with 90.28 (4) and 90.25 (1) and the bulb, which is specially designed and activates the optical system, is an essential part of the apparatus and should be assessed at the rate specified in Heading 90.25 (1). For the same reason, no countervailing duty should be charged under CET Item 32 and, in any case, not sub-item (4). Even if it is sub-item (1), exemption notification 42/76 would be relevant.

5. The learned S.D.R. supported the order-in-appeal since Heading 85.18/27(4) squarely covered the bulbs, CET Item 32 was also attracted for levy of countervailing duty, according to him, but he did not counter Shri Jain's contentions specifically.

6. The Tribunal notes that there is a change in the wording of Heading 85.18/27 (4) as compared to ICT Item 60 (2). The subject bulbs are indisputably electric filament lamps and, not being either infrared or ultra violet bulbs, are definitely covered by Heading 85.18/27(4). We agree with the reasoning of the Appellate Collector that being appliances, covered by Note 2 (a) to Chapter 90, Heading 85 would be attracted. This case is also not analogous to blood counting chambers and pipettes which were ordered to be assessed under the Heading 90.25 since the alternate Heading 70.17/18 covering laboratory glassware was more general in nature. We are, therefore, unable to accept this plea of Shri Jain. As regards the belated cancellation of the advice relating to ICT Item 60 (2), this cannot be a ground to read into Heading 85.18/27(4) something that is not applicable, prima facie. Moreover, no evidence of discrimination or established practice in respect of identical goods has been pleaded. The appeal, as far as customs duty is concerned, is not, therefore, tenable.

7. As regards the question of countervailing duty, Item 32-CET reads "Electric Lighting bulbs and fluorescent lighting tubes-

(1) Vacuum and gas filled bulbs.

(2) (3) are not relevant.

(4) All sorts, not otherwise specified."

It is clear that only electric lighting bulbs, and not other bulbs, are covered by this item. It is also clear that an identical description in Item 60(2) of the erstwhile ICT was held by the Board to exclude bulbs specially designed for scientific apparatus. From the facts before us, the subject bulbs are clearly of this category viz. specially designed for scientific apparatus and they would not be liable to countervailing duty under Item 32. They would be classifiable under Tariff Item 68 CET. However, no countervailing duty would be chargeable in view of the fact that such duty on imported goods was levied only w.e.f. 1-3-1979.

8. In the result, the appeal is partly allowed.