ORDER

1. Delhi Surgical Dressings, a company doing business at Bhagirath Palace, Delhi filed a revision petition under Section 131 of the Customs Act, 1962 before the Central Government, which was transferred to the Tribunal and is being disposed of as an appeal.

2. It transpires from a perusal of the grounds of appeal that the appellant company imported, by means of two Bills of Entry, items which are described as parts of complete haemocytometers, which the party asserts to be medical and diagnostic pathological instruments, The consignments consisted of 'Blood Counting Chambers' and 'pipettes'. The Department, at the time of clearance of the goods, assessed them under Tariff Entry 70.17/18 of the Customs Tariff Act, 1975, treating them to be 'laboratory glassware', whereas party's contention was that these constituted a complete set of haemocytometers and were clearly in the nature of 'medical diagnostic pathological instruments as contemplated by Tariff Entry 90.17/18. However, neither the Assistant Collector nor the Collector of Customs (Appeals), to whom they went up in appeal against the order of the Assistant Collector, accepted their contention and thus feeling aggrieved by the latter's order, namely, that of Collector of Customs (Appeals) dated 24-9-1980, went up in revision to the Government of India, urging that what they had imported by way of 'Blood Counting Chambers' and pipettes were nothing but a complete set of haemocytometers which are traded as diagnostical medical instruments.

3. The Appellants relied on some extracts from medical dictionaries, which they reproduced in the grounds of revision, and also certificates procured from some hospital authorities, and also elucidated their point by reference to technical data relating to these instruments, as contained in a catalogue of a concern of West Germany, namely, 'Albert Sass'. It was contended that this clearly indicates that a gnat deal of perfection and precision goes into the making of these instruments and the lower Customs authorities had erred in treating them as simple glass slides or glass tubes. They thus reiterated their plea that both these items were to be treated as falling under Chapter 90.17/18 of Customs Tariff and that the Department's decision to assess them for customs duty as Laboratory Glassware under Tariff Item No. 70.17/18 was not sustainable.

4. At the time of hearing, Shri B.R. Kumra appearing for the appellants, argued on the same lines and also made reference to technical literature as well as catalogue of the dealer in West Germany from whom he had purchased these items as also of 'Albert Sass' to which a reference was made in the grounds of revision itself. He also presented before the Bench a box containing these two items, namely, the Hood counting chamber and the two tubes-one having a red nozzle and the other a white on-explaining that what he imported was the blood counting chamber, and the tubes - one made for red blood corpuscle and the other for white blood corpuscle, and what the appellant was doing after import was only putting them in one compact set and further explained that these were imported loose in order to save costs of imports because importing them in box-sets would entail higher freight rate and consequential higher expenditure of foreign exchange. He further made reference to one other item which he stated to have purchased from the market which contained only the glass slide in a packed form described as 'Blood Counting Chamber'. This item bearing trade-name 'AO Bright-line' is of some American Company, and it was pointed out by Shri Kumra that this blood counting chamber has been described as "Haemocytometer-for In Vitro Diagnostic use for counting blood cells" and thus sought to draw support from this sample that this blood counting chamber by itself is known in trade parlance as a Haemocytometer, and characterised as being put for "diagnostic use". He thus submitted that his plea for treating both these items as complete parts of Haemocytometer set and assessing them under Tariff Item No. 90.17/18 be considered and order of the lower authorities accordingly rectified. He also pleaded that the Department itself had been assessing both these items upto 1979 under Tariff Item No. 90.17/18 and that all his previous consignments covering the period up to 1977-78 had been cleared on that basis and it was only subsequently that the Department revised their own view, and started assessing them under Tariff Item 70.17/18.

5. Shri M. Chatterjee, learned Departmental Representative appearing for the respondent controverted the arguments of Shri B.R. Kumra contending that these items were nothing but glass slides and glass tubes and by themselves they do not perform any pathological function and that the pipettes are used only for drawing blood and that glass slides are only used for deposit of blood, and that the counting of cells was done by the aid of microscope, and that but for the microscopic reading, these slides by themselves would not be discharging any function which could be characterised as medically diagnostic. He also made reference to the BTN Explanatory Notes at page 939, relating to Chapter 70.17/18 wherein it was emphasised that the heading "Laboratory, Hygienic, and pharmaceutical glassware" included all sorts of glass articles which are in general use whether research, pharmaceutical or industrial, and further pointed out that 'pipettes' find mention as one of these numerous articles and that by virtue of these Explanatory Notes to BTN, it was decided in a Collectors' Conference held in July 1979 that the 'Blood Counting Chambers' were to be classified under Tariff Item No. 70.17/18. He thus impliedly conceded that before the decision in this Collectors' Conference, these items were being assessed, as contended by the appellant as falling under Item 90.17, but asserted that BTN Explanatory Notes being unambiguous, having ruled out by process of elimination, such slides and pipettes as falling under the scope of Tariff Item No. 90.17, these have been rightly held to be falling under Tariff Entry No. 70.17.

6. We have given very careful thought to these respective contentions and have gone through the relevant literature, and also perused the physical samples, which were produced by Shri Kumra - one of which being from the consignment in dispute or identical thereto, and the other being a similar item.

7. We find on a reference to the technical literature in the form of catalogue of another German concern, named 'Albert Sass' that these blood counting chambers are not plain glass slides, but have a specific function, and the "Bright-Line" effect is obtained by fusing into the polished surface of the counting areas, a very thin semi-transparent layer of Rhodium with greatest precision. The lines are ruled through this metal layer and appear under the microscope as a net of very bright radiant lines. Shri Kumra also explained that these chambers have very fine grooves which are also not visible to naked eye, and these help the blood to disintegrate to facilitate counting. The catalogue of his own supplier, namely, 'Glass Messgerate' also a German concern further corroborates his plea in this regard because at page 18 of this catalogue, a Haemocytometer is described to be containing : -

(1) 1 blood mixing pipette (red),

(2) 1 blood mixing pipette (white),

(3) 2 cover slides, optically plane, and

(4) 1 counting chamber with grid division : Either single or double.

8. It is thus abundantly clear from a perusal of these catalogues that what was imported as blood counting chambers, were not plain glass slides but highly specialised appliances to be employed for the specific purpose of blood counting, and made to definite specifications and a great deal of technology has gone into their making. The fact that blood counting chamber by itself is known as haemocytometer is supported from a sample-a product of an American company which describes this as "haemocytometer: for diagnostic use for counting blood cells". The party's own box also is being sold as a haemocytometer set and except for this box nothing else is added to the imported item, namely, the chamber and the two pipettes. The physical examination of the pipettes further reveals that they are not wholly of glass but almost half of the portion is of transparent plastic tube and the other of the glass tube having measurements, and one of them has a red nozzle and the other white nozzle, and it is apparent that these red or white nozzles are to be correlated to red or white blood cells. There can also be no denying the fact, that this blood counting is a pathological function of blood testing, for various medical purposes. Even the Explanatory Notes to the BTN on which the learned Departmental Representative placed reliance clearly show that the expression "hygienic and pharmaceutical glassware" refers to articles of general use, "not requiring the services of a practitioner". The subject goods cannot, by any straining of reasoning, be deemed to be articles of such general nature which can be put to use by a non-professional man. They are, on the other hand, highly specialised items to be read with the aid of a microscope, by qualified pathologists. The Department has apparently taken an erroneous view in regard to these specialised articles, as general laboratory glassware, in which category only such items as bottles, tubes, filters, distilling flasks, jars, etc. could fall, and pipettes also of general nature, and not made to specific requirements, as in the present case. The Department has itself been admittedly regarding them as such before the decision of the Collectors' Conference referred to by the learned Departmental Representative. A reference to the extract of this Conference also reveals that they have proceeded on a wrong assumption, namely, that the 'blood counting chamber' consisted of a simple glass container and has no other specific character whereas the catalogues mentioned above make it manifest that they have grooves as well as finely ruled lines, drawn to the thin layer of rhodium fused into the tube. Apart from the fact that the Collectors' Conference cannot be treated as a guide for this Tribunal to arrive at a proper decision, otherwise also, hypothesis being unfounded, the validity of the decision is apparently open to question. These pipettes, as already observed, are part of the set, and having been made to go with the blood counting chamber, are also to be treated as an essential part thereof, and not a separate article of glass, apart from the fact, that they are not exclusively made from glass as already observed.

9. The contention of the party to treat them as a set is also supported from the Bills of Entry which reveal that the appellant had placed one consolidated order for supply of these items, and the intention was to have almost double pair of pipettes, to go with each chamber, so as to make it one set because the Bills of Entry show that as against 3000 blood counting chambers, 3100 pipettes of each description, namely red and white were imported, under a single licence and thereafter he treated them as a set only after putting them in an Indian-made box. It goes without saying that had he imported them as a complete set in box, they would have been certainly treated as haemocytometers and not separately described by the supplier as blood counting chambers and pipettes. We are thus of the considered view that both these items are to be regarded as Haemocytometer, and as such "medical appliances" falling within the ambit of Tariff Entry 90.17/18 of the Customs Tariff. We, therefore, allow the appeal and direct consequential action accordingly.