ORDER
Gowri Shankar, Member (T)
1. The question for consideration in this appeal is the classification of pipettes made of plastic imported by the appellant. These pipettes were intended to be used along with vacuette tubes that were also imported by the appellant, in the measurement of the erythrocytic sedimentation rate of human blood. It is not in dispute that the vacuette tubes which are protected from atmospheric contamination by a rubber device at the open end, contained a small quantity of sodium citrate, which is the reagent which required to be added to blood in order to initiate the chemical reaction required to measure the sedimentation rate. Thereafter the pipette, which is graduated, is inserted into the solution of blood and the agent, the rate being determined by the level to which the solution raises. The imported had claimed classification of both the products in heading 90.18 of the tariff. This heading covers “Instruments and appliances used in medical, surgical, dental or veterinary sciences, including scintigraphic apparatus.” The classification of the vacuette tubes in this heading was not questioned. The pipette however was classified by the Deputy Commissioner in heading 90.31 of the tariff as a measuring or checking instrument. On appeal from this order, the Commissioner (Appeals) classified the goods in heading 90.31. Hence this appeal.
2. The order of Deputy Commissioner makes it clear that the proposal of the department in the oral notice that was given to the importer (having waived the written notice) was for classification of the pipettes in heading 9031.80. This is the classification that he has confirmed. It is therefore not open to the Commissioner (Appeals) to determine a third classification, one that neither the importer claimed nor the department proposed. At the same time it is to be recognized that the Commissioner did not consider the goods classifiable in heading 9031.80. If he had, he would have dismissed the appeal. The order of the Commissioner (Appeals) essentially says two things, the goods are not classifiable in heading 9031.80 and are classifiable in heading 90.33. Had the department questioned the Commissioner (Appeals) conclusion that the goods are not classifiable in heading 9031.80, the matter would have been remanded to the Commissioner (Appeals) for choosing the correct classification as between the two headings in dispute. However, this has not been done. On this situation we must be guided by the jugdement of the Supreme Court in Prince Khadi Woollen Handloom Prod. Coop. Indl. Society v. CCE . In that judgement, the Supreme Court struck down the order of the Tribunal denying an exemption not on the grounds claimed by the department, but on an entirely new ground, holding that it was not open to the Tribunal to deny it on a fresh ground at the appellate stage. The correct procedure was to issue notice on this account to the assessee. Applying the ratio of that judgement, the classification determined by the Commissioner (Appeals) cannot be upheld and it will follow that the classification claimed by the importer has to be accepted by default.
3. The appeal is accordingly allowed and the impugned order set aside.