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"The heading also covers:

Special Apparatus (X-ray distraction and X-ray Spectrometry equipment), used for the examination of the material; the x-ray are diffracted by crystals and then made to fall on a photographic film or an electronic counter.

The system structure shown in the catalogue of the impugned X-ray Spectrometer is akin to the above description given in the H.S. N. Therefore the imported RIX Rigaku Fully Automatic Sequential X-Ray Spectrometer is actually classifiable under heading 9022.19 as classifiable by the lower authority.

2) HSN notes for heading 9027 (page 1518) clearly excludes X-ray etc apparatus from the purview of heading 9027. Therefore the Commissioner (Appeals)'s order for reassessment of the impugned X-ray Spectrometer under heading 9027 is not correct.

3) The Commissioner (Appeals)'s finding that the impugned equipment is equally classifiable under heading 9022 (as an X-ray equipment) and under heading 9027 (as Spectrometer) and therefore in such as sitution Rule 3(c) of the Rules for Interpreation becomes applicable is also not applicable in this case. Since the impugned X-ray Spectrometer is excluded from heading 9027 and the H.S.N. for 9022 explicitly states that X-ray diffraction and X-ray Spectrometer equipment are covered under heading 9022 only. Therefore, the finding of the Commissioner (Appeals) in this regard is also not based on facts and is against the scheme of classification in the Chapter Notes.

5. Shri S. Arumugam, learned DR appearing for the Revenue re-iterated the grounds of appeal and pleaded for restoring the order in original passed by the original authority. He invited out attention to Section XVIII of HSN under main heading 'Apparatus based on the use of X-Rays', para (C) (1) & (2) where it is specifically mentioned as under :

(1) Special apparatus (X-Ray diffraction and X-ray spectrometry equipment) used for examination of the crystalline structure as well as the chemical composition of materials; the X-rays are diffracted by crystals and then made to fall on a photographic film or an electronic counter.

(a) Special apparatus (X-ray diffraction and X-ray spectrometry equipment) used for the examination of the crystalline structure as well as the chemical composition of materials; the X-rays are diffracted by crystals and then made to fall on a photographic film or an electronic counter.

(b) Apparatus for radioscopic examination of bank notes or other documents.

8. Since X-ray Spectrometer is covered under Section XVIII of HSN, the goods in the present case correctly fall under sub-heading 9022.19 as contended by the Revenue. The case laws cited by Shri AS Sunderrajan, learned Counsel for the respondents i.e. CC Madras vs. SPIC Ltd reported in 1999 (113) ELT 579 is distinguishable because that was a case where classification of polishing kit was held to be necessary for efficient functioning of the Spectrometer. Similarly another case law cited by the learned Counsel for the respondents in the case of CC Bombay vs. Chemilab Corporation and CC Calcutta vs. Chimlab reported in 1988 (100) ELT 395 and 1999 (122) ELT 475 is also distinguishable from the facts of the present case as that was a case where accessories for spectrometers were held to be classifiable under heading 9027.30. Both the above case laws do not apply to the facts and the legal issues involved in the present case. Therefore, we find lot of force in the submissions made by the learned DR. We, are, therefore of the considered opinion that the goods imported by the respondents are correctly classifiable under 9022.19 of the CTA 1975. We, therefore, set aside the impugned order and allow the appeal filed by the Revenue.