CUSTOMS DUTY – mass spectrometer using beta radiation for ionisation – whether categorised under 90 22 (Apparatus based on the use of X-rays or alpha, beta or gamma radiations) or 90 27 (Instruments and apparatus for physical or chemical analysis) – both – categorisation resolved in favour of 90 27 by GIR 3(a) – appeal allowed
LONDON TRIBUNAL CENTRE
GE ION TRACK LIMITED Appellant
- and -
THE COMMISSIONERS FOR HER MAJESTY'S
REVENUE AND CUSTOMS Respondents
Tribunal: DR JOHN F AVERY JONES CBE (Chairman)
SHAHWAR SADEQUE M.Phil M.Sc
Sitting in public in London on 27 September 2005
Philip Challen, Head of Customs Compliance, GE International Inc, for the Appellant
Owain Thomas, counsel, instructed by the Acting Solicitor for HM Revenue and Customs, for the Respondents
© CROWN COPYRIGHT 2005
"IMS separates ionised molecular compounds on the basis their transit times (sometimes called 'time of flight' or 'drift time') when subjected to an electric field in a tube. This time is then compared to stored transit times of known compounds making it possible to distinguish the target material (explosives or narcotics) from other molecules. …[G]aseous samples enter an ionisation chamber where an ionisation source emits low-energy beta particles resulting in ion formation in the gaseous phase. A gating mechanism allows the ions of the correct polarity to pass through the shutter grid and enter the ion drift region where an applied electric field mobilizes the ions….The rate at which these ions traverse the ion drift region is inversely proportional to the size of the ion. This correlation allows for the identification of the analyte of interest…."
ITMS is described in the brochure as follows:
"ITMS, like IMS, separates ionised vapours and then measures the mobility of the ions in an electric field. In the typical implementation of ITMS, the gaseous sample passes through a semi-permeable membrane prior to ionisation. Also like IMS, the gaseous samples then enter an ionisation chamber where an ionisation source emits low-energy beta particles resulting in ion formation in the gaseous phase. Unlike IMS, however, the ionisation in ITMS is allowed to reach equilibrium in a field-free region and then pulsed into the drift tube where an electric field accelerates the ions to the collector. Note that in the ITMS detector, the shutter grid does not exist, resulting in a much greater portion of the ions entering the drift tube."
(1) Spectroscopy is the study of the interaction between electromagnetic radiation and matter. The Products are mass spectrometers. By way of comparison an optical spectrometer resolves a beam of light into components according to their wavelength ie colour component, whereas a mass spectrometer resolves a beam of positive ions according to their mass/charge ratio, or, if all have a single elementary charge, according to their masses. There are different types of mass spectrometers; the distinguishing feature between them is in the manner in which separation is achieved. Essentially ions of the material being analysed have to be produced.
(2) An ion is an atom with either extra electrons or missing electrons. Thus an ion can be positively or negatively charged. Methods of producing the ions include sparks, heated filament and acceleration by the use of an electrical potential, electric field at a sharp point or edge, electrospray ionisation, radiation source, eg alpha, beta or gamma rays. The Products use beta radiation because it requires zero power consumption, and has long-term stability and universal ionisation ability, which makes it the best choice for portable instruments. The use of beta radiation generally is being replaced by other means, such as electrospray.
(3) The source of beta radiation is an integral and inseparable part of the Products. Beta rays are part of the electromagnetic spectrum, covering radio, infra-red light, visible light, ultra-violet rays, X-rays, gamma rays, beta rays and cosmic rays. Beta rays are streams of very fast electrons with speeds of up to within a few tenths of a per cent of the speed of light.
(4) The use of a drift tube is an established technique for mass spectrometers.
(5) Because the Products are based on an ionisation radiation source and a drift tube and that a beta source has been designed into the Products, in Mr Clues' opinion the Products are "based on" beta radiation.
As contended for by Customs:
90 22 - Apparatus based on the use of X-rays or alpha, beta or gamma radiations, whether or not for medical, surgical, dental or veterinary use, including radiography or radiotherapy apparatus, X-ray tubes and other X-ray generators, high tension generators, control panels and desks, screens, examination or treatment tables, chairs and the like.
As contended for by the Appellant:
90 27 - 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); microtomes.
"…(5) Spectrometers. These instruments are used to measure the wave-lengths of emission and absorption spectra. They consist essentially of an adjustable slit collimator (through which the beam of light to be analysed passes), one or more adjustable prisms, a telescope and a prism table. Some spectrometers (particularly those used for infra-red or ultra-violet rays) are fitted with prisms or with diffraction gratings."
It also provides that "The Heading also excludes:…(e) X-ray, etc, apparatus (heading 90 22)."
(1) Because the Products are spectrometers, heading 90 27, which specifically mentions spectrometers, applies.
(2) The HSEN is not legally binding and cannot exclude items contrary to the wording of the heading. While the definition of spectrometer in the HSEN covers only optical spectrometers (and the same for mass spectrographs), this is accounted for by subheading 9027.30: "spectrometers, spectrophotometers and spectrographs using optical radiations (UV, visible, IR)."
(3) In heading 90 22, for the Products to be "based on the use of…beta radiation," the radiation must be the defining operational characteristic. The Products do not measure, detect or analyse the beta radiation. The defining characteristic is that of a spectrometer. It is incorrect to argue as the Respondent does that because the Products use beta radiation and would not work without the sample being first ionised by beta radiation, that they are based on beta radiation. That approach would lead to the conclusion that they were based on the use of electricity, or of spectrometry.
(4) Accordingly the only heading is 90 27. Alternatively, if 90 22 is also possible, under GIR 3(a) the more specific description is that of spectrometer in 90 27, rather than the wide range of goods in 90 22. Alternatively, GIR 3(c) means that 90 27 applies.
(1) The HSEN excludes spectrometers other than optical spectrometers from 90 27. Also the HSEN excludes apparatus falling within 90 22 from heading 90 27.
(2) The Products are within heading 90 22 only as being based on beta radiation. There is no requirement that the apparatus should either measure or detect radiation; such apparatus is within heading 90 30 which includes "instruments and apparatus for measuring or detecting alpha, beta, gamma, X-ray, cosmic or other ionising radiations." Since the use of beta radiation as the ionising source is an integral and essential part of the spectrometer function, the Products are based on the use of beta radiation. The words "based on the use of" are not a reference to the operational characteristics of the apparatus as a matter of language, and by reference to the apparatus included in the heading. For example the defining operational characteristics of a product for delivery of radiotherapy is the function of killing cancer cells. But radiotherapy is not "based on" killing cancer cells, but is based on the use of radiation.
(3) If (contrary to the above) the Products fall within both headings, the more specific one is 90 22 relating to products that are based on the use of radiation, rather than the general one of instruments and apparatus for physical and chemical analysis.
- The titles of sections, chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the following provisions.
(a) the heading which provides the most specific description shall be preferred to heading providing a more general description….
- For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and mutatis mutandis to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule the relative section and chapter notes also apply, unless the context otherwise requires."
Heading 90 22
Heading 90 27
"It is settled case-law that, in the interests of legal certainty and for ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN. The explanatory notes drawn up, as regards the CN, by the Commission and, as regards the HS, by the Customs Cooperation Council (the HSENs), may be an important aid to the interpretation of the scope of the various tariff heading but do not have legally binding force."
|"Other instruments and apparatus using optical radiations (UV, visible, IR)||902750|
|Other instruments and apparatus:|
|Ph meters, rH meters and other apparatus for measuring conductivity||902780 11|
|Apparatus for performing measurements of the physical properties of semiconductor materials or of LCD substrates or associated insulating and conducting layers during the semiconductor wafer production process or the LCD production process||902780 13|
"20. In the interpretation of a classification regulation, in order to determine its scope, account must be taken inter alia of the reasons given, as the Court did in its judgment in Rank Xerox (Case C-67/95  ECR I-5401, paragraph 26)."
Sony Computer Entertainment Europe Ltd v EC Commission (Case T-243/01) is an example of a defect in the reasoning invalidating a classification Regulation. The Court noted that in adopting a classification regulation it is incumbent on the Commission to state its reasons for the classification "in order to inform persons concerned of the justification for the measure adopted and to enable the Community Court to exercise its powers of review" (paragraph 131). The reason why such a defect in a Regulation renders it invalid flows from its nature as a legislative measure binding in its entirety. The same cannot be said of a BTI which is (i) only binding upon the Commissioners (and the other customs authorities of the Member States) when presented by the holder and not on the holder and (ii) is only binding in respect of the classification given and not as to the reasoning applied.
JOHN F. AVERY JONES
RELEASE DATE: 27 October 2005