DENSO HARYANA PVT. LTD. Vs. COMMISSIONER OF CUSTOMS (I&G)
LAWS(CE)-2015-7-66
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on July 15,2015

Denso Haryana Pvt. Ltd. Appellant
VERSUS
Commissioner Of Customs (IAndG) Respondents




JUDGEMENT

R.K.SINGH,MEMBER (T) - (1.)Appeal has been filed against Order -in -Appeal dated 7 -2 -2011 in terms of which 336 oxygen sensors valued at Rs. 2,28,491/ - imported by the appellant were held to be classifiable under CTH 9027 10 00 while appellant claimed the classification under 9031 80 00.
As the dispute in this case is regarding classification, the said two competing headings are reproduced below for convenience: - -

"CTH 9027.10.00 of the Import Tariff

9027 Instruments and apparatus for physical or chemical analysis (for example, polarimeters, refractometers, spectrometers, gas or smoke analysis apparatus); instruments and apparatus for measuring or checking viscosity porosity, expansion, surface tension or the like; instruments and apparatus for measuring or checking quantities of heat, sound or light (including exposure meters); mictrotomes.

9027.10.00 - Gas or smoke analysis apparatus.

9027.20.00 -....

90.31 - Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this Chapter; profile projectors.

....

9031.80 - Other instruments, appliances and machines.

9031.90 - Parts and accessories"

The appellant has contended that the sensors in question are not instruments or apparatus for physical or chemical analysis nor are they instruments or apparatus for measuring or checking viscosity, porosity expansion surface tension or the like. These are also not instruments and apparatus for measuring or checking quantities of heat, sound or light. The appellant explained as under: - -

"The oxygen sensor is positioned in the exhaust pipe. The mechanism in the oxygen sensor involve use of platinum electrode in which zirconium electrolyte is inserted and electricity is generated by the difference in the oxygen concentration of the two sides, the electrical signal thus generated is passed to Engine Control Unit (ECU) to determine if mixture is rich or lean, and thus adjusts the flow of fuel to engine accordingly. Rich mixture is caused by the incomplete combustion of fuel in the engine leading to emission of raw gases (hydrocarbons), carbon monoxide and also nitrogen oxide when combustion temperature is very high.

Lean Mixture: When the combustion of gases generated due to burning of fuel in engine is optimum (stoichiometric or theoretical combustion) i.e., HC & CO are less likely to be generated when air fuel mixture is lean, however, excessively lean mixture result in engine misfire and increase the hydrocarbon, NOx. Using the Stoichiometric air fuel ratio as base, IV is output from oxygen sensor for rich air fuel ratio and approximately 0V for a lean ratio.

Working Principle: Oxygen sensor has Zr02 solid electrolyte which works as oxygen ionic conductive material at more than 300øC. when the air is introduced into the sensor, Zr02 solid electrolyte reacts on a difference in oxygen concentration between atmosphere and exhaust gas side which generate electromotive forces as a concentration cell."

It also submitted the extract from Wikipedia to press home the point that these sensors are not measuring devices. It also cited the judgment in the case of Pentax Engineering Pvt. Ltd. v/s. CC, Bombay [ : 1998 (99) E.L.T. 368 (Tri.)]. CESTAT judgment in the case of Vasta Marketing v/s. CC, Chennai [ : 2010 (253) E.L.T. 129 (Tri. -Chennai)] was also cited by the appellant.

(2.)The ld. Departmental Representative, on the other hand, stated that the impugned goods are nothing but an instrument for physical analysis and is also a measuring instrument and therefore it falls under Chapter Heading 9027. Ld. Departmental Representative also stated that Chapter Heading 9031 covers measuring or checking instruments, appliances and machines which are not specified or included elsewhere in the chapter. The ld. departmental representatives also referred to the opinion of U.S. Customs number HQ 950405, dated 20 -8 -1992 in its support.
(3.)We have considered the contentions of both sides. The goods involved are oxygen sensors. Sensor is a general name for detecting device used to locate or detect presence of matter or energy. Apart from the explanation given by the appellant, Wikipedia write -up on oxygen sensors (http://en.wikipedia.org/wiki/oxygen _sensor), clearly records that "oxygen sensors do not directly measure the air or the fuel entering the engine. But when information from oxygen sensors is coupled with information from other sources it can be used to indirectly determine the air to fuel ratio". As per the same Wikipedia page, "oxygen sensor is an electronic devise that measure the proportion of oxygen in the gas or liquid." Thus it is obvious that oxygen sensors are not instruments or apparatus for physical or chemical analysis as they do not do any analysis and are not capable of doing so either. Indeed, these are quite unlike polarimeters, refractomters, spectrometers, gas or smoke analysis apparatus which are mentioned as examples in the said Chapter Heading 9027. These sensors also cannot be said to be instruments and apparatus for measuring or checking viscosity, porosity, expansion surface tension or the like because what they do is nothing at all like checking viscosity porosity, expansion or surface tension. These also do not check the quantities of heat, sound or light. Thus, the impugned goods do not belong to Chapter Heading 9027. Once their classification under Chapter Heading 9027 is ruled out, they would land up under CTH 9031 as admittedly that is the only competing entry.
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