Case No: A3/2007/2129

Neutral Citation Number: [2008] EWCA Civ 1085
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(CHANCERY DIVISION)
SIR ANDREW MORRITT, 
(THE CHANCELLOR OF THE HIGH COURT)
[2007] EWHC 1889 (Ch)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14 /10 /2008
Before :

LORD JUSTICE MUMMERY
LADY JUSTICE ARDEN
and
MR JUSTICE LEWISON
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Between :

	TOMY (UK) LIMITED	Appellant	
	- and -		
	HM REVENUE AND CUSTOMS	Respondent	
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(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Paul Lasok QC (instructed by Messrs Hassan Khan & Co) for the Appellant
Mr Owain Thomas (instructed by HM Revenue & Customs Solicitors Office) for the Respondent

Hearing date : 10 July 2008
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Judgment
Lady Justice Arden: 
1.	This is a renewed application for permission to bring a second appeal, with the appeal to follow if permission is granted, from the order of Sir Andrew Morritt Chancellor dated 31 July 2007. The issues relate to the classification for the purposes of European Union customs duty of certain one-way baby monitors imported by the appellant (“Tomy”) from China. 
2.	I will refer below to the detailed findings of fact about the baby monitors in question.  However, in summary, a one-way baby monitor is used when the baby is in a different place from the carer and the carer wishes to know what sounds the baby is making so that he or she can decide whether the baby needs attention.  The carer can only listen.  A one-way baby monitor does not allow the carer also to speak using the equipment, as is the case with two-way baby monitors, with which this appeal is not concerned.
3.	The relevant monitors were classified by the respondent HM Customs and Excise (“HMRC”) under Combined Nomenclature (CN) code 8527 90 98, and the European Commission subsequently issued a classification regulation (EC) 305/2001 (“the classification regulation”) in which the baby monitors were similarly classified. This meant that duty of 9.3% was payable.  Tomy submits that the correct code was 8527 90 92 which was subject to nil rate duty.  It also contends that the classification regulation was invalid.  If that argument is sustainable, permission to appeal must be given and a reference made to the Court of Justice of the European Communities   (“the ECJ”) as only that court can determine whether an instrument of any organ of the European Union is valid or not.
4.	The appeal to the Chancellor occurred in the following way.  On 22 July 2002 Tomy applied to HMRC for Binding Tariff Information under CN code 8527 90 92. On 7 August 2002 HMRC sent to Tomy three binding tariff notifications but under CN code 8527 90 98 because of the provisions of the classification regulation. The conclusion of HMRC was confirmed by a formal departmental review on 4 October 2002 and by the decision of the VAT and Duties Tribunal (Dr Avery-Jones and Mrs Farquharson), released on 19 December 2006.  Tomy appealed from that decision and the appeal was heard by the Chancellor.  Passages from the decision of the tribunal are quoted by the Chancellor in his judgment and I set out the relevant passages below.
Legislative framework
5.	I take the legislative framework from the judgment of the Chancellor:
“The relevant legislation
“2. The European Union is a customs union and liability to customs duty of goods imported from third countries into the United Kingdom depends on the provisions of Council Regulation (EEC) 2658/87 and Commission Regulation (EC) 1832/2002. The Council Regulation recited that the International Convention on the Harmonised Commodity Description and Coding System, to which the EU was a signatory, required the establishment of a combined nomenclature based on that of the harmonised system. By Article 1.1 a goods nomenclature, to be called 'the combined nomenclature' or 'CN' for short was established to meet the requirements of both the Common Customs Tariff and the external trade statistics of the Community. Its terms were set out in Annex I thereto. Article 9 requires the Commission to make further regulations relating to the classification of certain goods and to publish explanatory notes. Article 12 requires the Commission by regulation to adopt in each year a complete version of the Combined Nomenclature as amended since the previous year's version.
3. At all times material to this appeal the Combined Nomenclature was in the form annexed to the Commission regulation to which I have referred. Section 1 of Annex I contains certain general rules for the interpretation of the Combined Nomenclature. So far as material it is in the following terms:
“Classification of goods in the Combined Nomenclature shall be governed by the following principles:
“1. 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.
[2...]
3. When by application of rule 2(b) or for any other reason, goods are prima facie classifiable under two or more headings, classification shall be effected as follows: 
(a) the heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods;
(b) mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, in so far as this criterion is applicable; 
(c) when goods cannot be classified by reference to 3(a) or (b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
[4...
5...]
6. 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 requires otherwise.”
4. Section XVI of Annex I deals with amongst other goods “...Electrical Equipment; Parts thereof”. Note 4 provides:
   
“Where a machine (including a combination of machines) consists of individual components (whether separate or interconnected by piping, by transmission devices, by electric cables or by other devices) intended to contribute together to a clearly defined function covered by one of the headings in Chapter 84 or 85, then the whole falls to be classified in the heading appropriate to that function.”
5. Chapter 85 (which is the second chapter of Section XVI) covers “Electrical Machinery and Equipment and Parts thereof; Sound Recorders and Reproducers, Television Image and Sound Recorders and Reproducers, and Parts and Accessories of such articles”. Goods of various more specific descriptions within that class are then set out in tabular form of which column 1 is the CN Code, column 2 the description of the goods and column 3 the conventional rate of duty. The CN code is in digital form in which four digits comprise a heading, six a sub-heading and eight a sub-sub-heading, though the categories of sub-sub-heading are treated as sub-headings. Thus CN Code 8501 deals with electric motors, 8525 transmission apparatus and 8527 reception apparatus. Columns 1 and 2 of those with which this appeal is directly concerned are the following:
“8525 Transmission apparatus for radio-telephony, radio-telegraphy, radio-broadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television cameras; still image video cameras and other video camera recorders; digital cameras;
8525 10 - Transmission apparatus...
8525 20 - Transmission apparatus incorporating reception apparatus....
[8525 20 10...]
[8525 20 91...]
8525 20 99 - - - Other
[8526 Radar apparatus....]
8527 Reception apparatus for radio-telephony, radio-telegraphy or radio-broadcasting, whether or not combined, in the same housing, with sound recording or reproducing apparatus or a clock:
[8527 12, 13, 19, 21, 29, 31 32, 39]
8527 90 - Other apparatus:
8527 90 10 - - For radio-telephony or radio- telegraphy, for use in civil aircraft
- - Other:
8527 90 92 - - -Portable receivers for calling, alerting or paging
8527 90 98 - - -Other”
In the case of 8525 10 80 the rate of duty specified in the third column is 3.6% and in the case of 8527 90 98 it is 9.3%. In all the other cases shown above there is no duty payable.
6. The Explanatory Notes required to be published by the Commission pursuant to Article 9.1 of the Council Regulation provide in relation to CN Codes 8525 20 10 to 8525 20 99:
“These subheadings include apparatus consisting of all the elements required for transmission and reception, in one cabinet or housing. Such is the case, for example, with walkie-talkies, which contain the batteries or accumulators required for their operation, or with transmitter-receiver apparatus, the power supply unit of which would be separate and connected to the apparatus by cable only.
   
These subheadings also include units in which the transmitter and receiver elements are located in different furniture units or housing, provided they constitute a functional unit. In order to be regarded as constituting a functional unit, transmitter-receiver apparatus must be installed near each other (for example, in the same premises or on the same vehicle) and have certain elements in common, such as the aerial.”
7. On 12th February 2001 the Commission promulgated the Classification Regulation under Article 9.1 of the Council Regulation concerning the classification of certain goods in the Combined Nomenclature. It recited that:
“Pursuant to the said general rules, the goods described in column 1 of the table annexed to the present Regulation must be classified under the CN codes indicated in column 2, by virtue of the reasons set out in column 3.”
8. The third item in the table relates to goods described as:
“A product described as a baby-monitoring device, put up in a set for retail sale, consisting of
- a transmitter for radio telephony, with a built-in microphone
- a portable receiver for radio-telephony combined with a loudspeaker in a housing
- two mains adaptors
Both the transmitter and the receiver can operate using either batteries or mains adaptors
The device serves to transmit noises made by a baby in the vicinity of the transmitter and is used to monitor babies with a range of roughly 300 metres.”
9. Such goods were given the CN Code 8527 90 98. Accordingly goods within that description would bear customs duty at the rate of 9.3%. The reason given in the third column for that attribution is:
“Classification is determined by the provisions of General Rules 1, 3(c) and 6 for the interpretation of the Combined Nomenclature, and the wording of CN codes 8527, 8527 90 and 8527 90 98. Neither the transmitter nor the receiver gives the product its essential character.”
10. Thus the dispute between Tomy and HMRC is whether One-Way Monitors may be imported duty free as “portable receivers for calling, alerting or paging” under CN code 8527 90 92, as Tomy contends, or would bear duty at the rate of 9.3% as “other” goods under CN Code 8527 90 98, whether by force of the Combined Nomenclature as interpreted in accordance with the general rules or in consequence of the Classification Regulation.”
Factual background
6.	The Chancellor set out the findings of fact by the tribunal on the one-way monitors:
“One-Way Monitors
11. The VAT and Duties Tribunal heard oral evidence from the designer of the One-Way Monitors Tomy wished to import, Mr Perran Newman. He demonstrated how they worked. In addition there was evidence from Mr Gaikwad a former policy adviser to HMRC called by Tomy and an expert witness, Mr Bevan Clues, called on the behalf of HMRC. In the light of all that evidence the Tribunal described the various One-Way Monitors in the following terms:
(1) The [One-Way Monitors] comprise three models of baby monitor: the Walkabout Classic, the Walkabout Digital and the Walkabout Premier, to which we shall refer as the Classic, Digital and Premier. All three comprise a baby unit that contains a microphone which picks up the baby's sound and transmits it by radio-telephony to a parent unit that receives the radio signals and reproduces them via a built-in loudspeaker. All three also have a bar graph visual display with increasing numbers of lights illuminating as the volume of the sound increases, the first five lights being green and the last three red, which can be used at the same time as, or instead of, the sound. The lights might typically be used if the parents were watching television and might not hear the sound. The [One-Way Monitors] can be set to output sound only or sound plus lights; on the Classic the sound can be muted so that only the lights show, and the Digital and Premier have a volume control. All three enable two different channels to be selected with a view to minimise interference from other similar products in the vicinity. Both units of all the [One-Way Monitors] have an on/off switch with a light showing when it is on. The parent unit is portable. Both units may be used with batteries or from the mains.
(2) The Classic model transmits the sound continuously (but the sound can be muted). The Digital and Premier [One-Way Monitors] have voice activation (“VOX”) under which nothing is transmitted until the sound reaches one of two pre-determined settings of 55 and 65 dBA, after which it transmits the sound continuously so long as the sound continues. At the higher setting the baby will be crying loudly before transmission of sound begins. 
(3) The Digital and Premier [One-Way Monitors] have the following additional features: a night light on the baby unit; detection that the baby unit is transmitting; a temperature display of the temperature in the baby's room which is displayed either digitally on the Premier [One-Way Monitors] or on the moving light display for the Digital [One-Way Monitors] (including an alarm if the temperature falls outside set limits); a battery low signal for each unit (with different alarm signals depending on which unit has the low battery); and an identifying code setting enabling 16 different combinations to be set to match the other unit so that the parent unit does not receive transmission from another unit in the vicinity set to the same channel. Each of these features give a different signal so that the nature of the problem can be identified. The temperature and low battery signals operate by telemetric signals, by which signals pass between the units but are inaudible. The Premier has a compact parent unit which can be separated from the rest of the parent unit and carried by the parent. When this is removed only the sound can be used as the lights are on the remainder of the unit.”

7.	The Chancellor added:
“12. Tomy relies on three specific aspects of these monitors. First, in the case of all three models sound may be muted with the result that only the flashing light shows. Second, the Digital and Premier models are sound/voice activated so that sound below a particular level is not transmitted. Third, the Digital and Premier models also transmit additional information such as the ambient temperature of the baby unit. As will be seen Tomy contends that the consequence of these additions is that the Classification Regulation is inapplicable to these One-Way Monitors.
13. For completeness I should mention that there are two-way baby monitors on the market. In those cases both baby and parent unit both transmit and receive. Further there is a separate classification regulation (Commission Regulation (EC) 646/2001) which deals with them. It classifies them as within CN Code 8525 20 99. This appeal is not directly concerned with them.”

Decision of the Chancellor
8.	The Chancellor held that heading 8525 did not apply for the following reasons:
“20. General Rule 1 states that “for legal purposes, classification shall be determined according to the terms of the headings...and any relative...section notes...”. Thus the starting point must be to consider the submission of counsel for Tomy that the proper heading for the classification of One-Way Monitors is 8525 and not 8527. In that connection the relative section note is Note 4 quoted in paragraph 4 above. Counsel for Tomy also relies on the Explanatory Notes set out in paragraph 6 above.
21. Counsel for Tomy submits that One-Way Monitors fall within Note 4 on the basis that the baby and parent units are “intended to contribute together to a clearly defined function..”. He contends that such function is that of transmitting and receiving. He argues that the function of transmitting and receiving falls squarely within the heading 8525 as “Transmission apparatus for...radio-telegraphy...whether or not incorporating reception apparatus”. He relies on the Explanatory Notes as demonstrating that the combined function may arise from physical proximity. He suggests, by contrast, that heading 8527 cannot apply because it is limited to “reception apparatus for...radio-telegraphy...”.
22. The submission for HMRC is to the effect that Note 4 does not apply for the reasons given by the Tribunal. Consequently headings 8525 and 8527 are equally applicable, depending on which unit you consider, as either transmission apparatus or reception apparatus. As neither General Rule 3(a) nor 3(b) can resolve the issue General Rule 3(c) requires the application of heading 8527.
23. In my judgment Note 4 does not apply to One-Way Monitors. I accept that the baby and parent units are capable of being individual components comprising a machine or combination of machines. I will assume that if some element of connection is required even between separate components, as envisaged by the Explanatory Notes, it is provided by wireless radio connectivity. Then the question is whether the units as individual components are intended to contribute together “to a clearly defined function covered by one of the headings in Chapter...85”.
24. It is at this point that, in my judgment, the argument of counsel for Tomy breaks down. The clearly defined function he relies on is “transmitting and receiving”. But, as the Tribunal clearly explained in the passage from their decision I have quoted in paragraph 17 above, the heading 8525 envisages that the transmission apparatus should incorporate the reception apparatus. And, unless it does, then for the purposes of Note 4 there can be no clearly defined function covered by any of the headings in Chapter 85.
25. For these reasons I reject the submission for Tomy that heading 8525 applies…”
9.	As to the appropriate subheading within 8527, the Chancellor rejected Tomy’s case that the devices fell within 8527 90 92 and held instead that they fell within 8527 90 98:
“28. ….It is not suggested that the specific purpose of One-Way Monitors is for the baby to 'call' or 'page' anyone. Nor is the fact that they may have the effect of 'alerting' one at the parent unit end sufficient. Counsel for Tomy submits that it is the specific or 'very' purpose of One-Way Monitors to alert those at the parent unit end. He relies on the conclusion of Mrs Farquharson in paragraph 25 that:
   “...at least the Digital and the Premier Products are receivers for calling, alerting or paging because effectively that is their main purpose. She did not, and she considers that other parents do not, in practice use the Products in order to be able to listen continuously to the baby, but in order to be alerted when the baby needs attention. Those Products are therefore a “receiver for calling, alerting or paging” because that is the purpose for which they are used in practice.”
29. That conclusion is disputed by counsel for HMRC. He contends that One-Way Monitors are listening devices such as a “bug”. He uses the analogy of a torch. It may be used to 'alert' another but that is not its purpose. He relies on the decision of the Chairman in paragraph 24. The Chairman considered that the main feature of One-Way Monitors is to convey electronically the sound of the baby whether in sound or light. The paragraph continues:
“The Chairman does not consider that where the lower setting operates [Digital and Premier Models] and in all cases with the Classic that there is any calling, alerting or paging. Any sound is being transmitted and the parent has to decide whether to do anything. This goes beyond the act of making contact and so the receiver (since in heading 8527 we are concerned with the receiver) is not for calling, alerting or paging; it is mainly for other purposes. This is so even though he accepts that parents are likely in practice to use the Products, and in particular the Digital and Premier ones, so that they operate to alert them when the baby needs attention.”
30. This conclusion is criticised by counsel for Tomy. At the hearing he had relied on various Communications Dictionaries for the proposition that alert means “the indication of a change of state”. He submitted that that is what a One-Way Monitor does, that is why people buy them and that should be recognised as their specific purpose.
31. I prefer the conclusion of the Chairman and the submissions of counsel for HMRC. The question is one of the proper interpretation of the CN Code 8527 90 in circumstances where none of the General Rules provides any additional guidance. I do not think that the evidence from Mr Clues or Mr Newman to which the Tribunal referred in paragraphs 10 and 11 was either admissible or relevant to the issue of construction. Moreover the question is not technical so that the meaning of 'alert' should not be limited to the technical meaning of an indication of a change of state to the exclusion of the more general meaning of “warn”.
32. The question of interpretation arises in the context of the heading 8527 applicable to reception apparatus as opposed to transmission apparatus to which heading 8525 relates. The purpose of the apparatus is to receive. A “receiver for calling, alerting or paging” necessarily subsumes at least part of the purpose of the transmitter. The purpose of “calling” or “paging” necessarily involves the purpose of the person initiating the transmission. The insertion of “alerting” between those two indicates that the transmitter should be able to have that purpose too. But in the same way that the baby cannot “call” or “page” so it cannot “alert” in the sense that that word is used in sub-sub-heading 8527 90 92. 
33. I do not doubt that, as Mrs Farquharson considered, the listener to the parent unit is concerned to know whether she or he should take any particular action in the light of what she or he hears or sees. Nor do I doubt but that is why she or he bought the One-Way Monitor in the first place. But I do not think that the purpose of the buyer or listener, as opposed to that of the transmitter, can so alter the specific or 'very' purpose of the apparatus as apparatus for listening so as to constitute it “a..receiver for...alerting...”.
34. For these reasons, in agreement with the Chairman, I conclude that One-Way Monitors do not fall within CN code 8527 90 92. Accordingly they necessarily fall into CN Code 8527 90 98 and, on import from third countries, attract customs duty.”
10.	The Chancellor also rejected a separate argument that the classification regulation did not apply to one-way baby monitors, but there is no appeal against his decision on that point as success on that point is considered unnecessary for Tomy’s purposes. 
11.	We are told that Tomy has a liability of some £1m in respect of one-way monitors that it has imported.  Liability is not continuing because Tomy has stopped importing these monitors.
Discussion and conclusions
12.	The first issue is as to the correct heading, that is, whether the monitor falls within 8525 or 8527. 
13.	Mr Paul Lasok QC, for the appellants, submits that the Chancellor was in error because note 4 in section XVI of annex 1 to the CN expressly contemplates a machine consisting of individual components which may be separate from each other.  Moreover, on his submission, the explanatory notes make it clear that where the equipment consists, as here, of transmission apparatus and reception apparatus it falls within 8525, not 8527.  The Chancellor’s adverse holding relied on the fact that note 4 applies only to a combination of devices where they are “intended to contribute together to a clearly defined function, covered by one of the headings in chapter 84 or 85". On Mr Lasok’s submission, the heading to 8525 makes it clear that physical incorporation is not required and the function to which note 4 applies is the function of transmitting and receiving.
14.	Mr Owain Thomas, for HMRC, supports the conclusion of the Chancellor save that he challenges the correctness of the assumption made by the Chancellor in [23] of his judgment. Mr Thomas submits that the functions fulfilled by the two devices which make up the one-way baby monitor fall within two separate headings and that the note is therefore of no assistance. On his submission, this point is underscored by use of the words in the heading of 8525 "whether or not incorporating reception apparatus".  These words, he submits, show that the reception function is unnecessary and that the heading is directed to transmission rather than transmission and reception.
15.	The Chancellor dealt with the first issue at [20] to [24] of his judgment.  The issue turns on note 4.  I agree with the Chancellor’s conclusions, and I make the same assumption as he did in [23] of his judgment so that it is unnecessary to decide whether that assumption is correct.  For note 4 to apply, it must be possible to identify clearly a function covered by one of the headings in chapter 84 or chapter 85, to which the two devices, the transmitter and receiver, together contribute. The relevant candidate heading is 8525, which provides that it applies to “transmission apparatus…whether or not incorporating reception apparatus”.  It is not every combination of transmission equipment and reception equipment that falls within 8525.  To be a combined device within this description it must, as the tribunal held, and the Chancellor accepted, be a device that integrates both transmission and reception.  Here the devices are two separate devices, one for transmission and one for reception.  The scheme of the CN is that there are separate headings for such devices.  The wording of any one heading is not to be cut down by the wording of another heading: each must be given its normal meaning and proper weight.  In 8525 the focus is on transmission: that is to be the predominant element.  The explanatory notes provide that the transmitter and receiver units may be separately located but these notes cannot extend the meaning of the heading (see generally Case C-309/98 Holz Geenen GmbH  v Oberfinanzdirektion Munchen and Case C-15/05 Kawasaki Motors Europe NV v Inspecteur van de Belastingdienst/ Douane District Rotterdam.  Therefore note 4 does not apply.
16.	I turn to the second issue, which is as to the applicable sub-heading within 8527.  On this, Tomy’s case is that the Chancellor should have found that this was 8527 90 92 and not 8527 90  98.  The second issue turns on whether the devices are portable receivers “for … alerting”.  It is common ground that the devices are portable and that they are receivers.  The only issue is whether they are “for …alerting”.  It is common ground that the Chancellor was correct to apply the decision of the ECJ in C-218/89 Shimadzu Europa Gmbh v Oberfinanzdirektion Berlin [1990] ECR 1-4391 and it is sufficient to set out the Chancellor’s description of that case:
“27. That case concerned the correct classification of apparatus imported by Shimadzu comprising a data processor (which included a control panel, central processor, converter, electrical interfaces and electronic components) and a printer linked together by a cable. The relevant authority in Berlin considered them to be “apparatus for measuring...electrical quantities” within CN code 9030. Shimadzu objected to this classification on the ground that the apparatus was used in chromatography and was not intended for measuring electrical quantities. The court upheld the objection. It stated:

“9. It should be noted that apart from instruments and apparatus for measuring or detecting radiations, Heading 9030 of the Combined Nomenclature only covers, according to its very wording, instruments and apparatus for measuring or checking electrical quantities. 
 10. In its judgment in Case 19/88 ICT and Others v Direction générale des douanes et droits indirects [1989] ECR 577, with regard to the provisions of subheading 90.28 A II (a) of the Common Customs Tariff, the Court ruled that apparatus for measuring electrical quantities was apparatus specifically intended to carry out such measurement. 
11. The same interpretation, based on the purpose of the apparatus in question, must also be applied to define the content of Heading 9030 of the Combined Nomenclature, the provisions of which are in this respect similar to those of subheading 90.28 A II (a) of the Common Customs Tariff. 
12. Accordingly only apparatus whose very purpose is to carry out checks on electrical quantities can be regarded as apparatus for checking such quantities. 
13. It follows that pieces of apparatus like those at issue in the main proceedings, which, according to the information supplied by the Bundesfinanzhof, are intended not to measure or check electrical quantities but, on the basis of measuring and checking an electrical quantity, namely voltage, to present and process chromatograms, cannot be classified as “instruments and apparatus for measuring or checking electrical quantities”. 
14. The answer to the Bundesfinanzhof's question should therefore be that the Combined Nomenclature should be interpreted as meaning that apparatus which measures or checks electrical quantities only for the purpose of collecting, evaluating and processing data in the field of chromatography does not fall within Heading 9030.” ”
17.	On this basis the Chancellor concluded, as noted above, that it was necessary to ascertain the specific or “very” purpose of the monitors. 
18.	 Mr Lasok makes a number of criticisms of the reasoning of the Chancellor.  He submits that the Chancellor was wrong to limit the meaning of the word "alert" to its ordinary meaning, because that would exclude signals given otherwise than by non-human agency, as where changes in temperature are communicated by the monitor.  He also submits that, when a baby cries, the baby is alerting the carer, and that the Chancellor was wrong not so to conclude.  Furthermore, on his submission, it cannot be said that the very purpose of the device is for the carer to listen, because two models can operate when the sound exceeds a certain minimum level.  They are, however, still operating, when the noise is reduced.
19.	Mr Thomas’ submissions substantially rely on a distinction between portable receivers, such as surveillance devices which simply register noise and passively listen, from those which are actively used to communicate something.   The former are outside 8525, but the latter may not be.  The court must examine the objective characteristics of the item in question to determine which side of the line the item falls.  The purpose of the device in question here is to allow the carer to monitor the baby. Mr Thomas submits that his argument is not undermined by the fact that a purely mechanical alarm can "alert".  He submits that the appellant’s argument is clearly wrong because the mechanical alarm, while incapable of conscious intention, has (as he puts it) a prescribed preordained meaning intended by the designer of the device, and is susceptible of no other construction by the user.
20.	Mr Lasok submits that surveillance devices (as to which he notes there is no evidence) would be within 8525 because their essential function is to transmit information.   Indeed this must follow from his submissions.   He submits that the objective characteristics of the one-way baby monitor show that its function is to alert the carer.  
21.	As to the purpose of the monitor, in my judgment, as the Chancellor observed, Mr Lasok's submissions focus on the effect rather than the purpose of the monitor.  It is on that basis, for instance, that he urges the court to treat the baby as alerting the carer.  But that is not what the heading requires.  As the ECJ made clear in a similar context in Shimazudu, the legislation focuses on purpose and the words “for calling, alerting or paging” are words limiting the scope of the heading which cannot properly be ignored or reformulated to meet this case.
22.	The argument is not undermined by the fact that an alert can be given without human intervention, as where it is given by a change in temperature. Tomy does not rely on such changes in this case.  It relies on the baby’s cry.  All the Chancellor decided about changes in state given by inanimate intervention was that the word “alert” should not be limited to its technical meaning. The real point is that in this case there is human intervention:  the baby’s cry.   The cry triggers the monitor but the cry is not made for the purpose of communicating via the monitor with the carer. The question is whether this sort of communication is “for calling, alerting or paging”.   The expressions “calling” and “paging” clearly cover situations where the sole or main purpose of making the call or of paging is to communicate via the receiver in question.  But the baby does not emit a cry for this purpose.  The receiver happens to pick it up.    To cover this case, the necessary wording would have been for communicating an alert given in some way, rather than for alerting.  The heading, however, focuses on the purpose, rather than the fact, of the communication.
23.	The argument is not assisted by referring to the fact that some models of the monitors can only operate by light signals at the carer’s end when the sound is turned off or on the basis that the monitor is operated only if the noise exceeds a pre-set level.  That does not prove that the monitors are “for” alerting the carer, only that in certain circumstances the carer cannot achieve the aim of monitoring noise merely by listening.  
24.	Mr Lasok submits that this court should refer the question of the applicable heading to the ECJ.  In my judgment, the answer to the question is not open to real doubt and it is therefore acte clair.
25.	In those circumstances the issue of the validity of the Commission regulation does not arise because, if it was invalid (and that is a matter which would have to be referred to the ECJ), HMRC would still be correct in its conclusion.    Because the classification regulation is under attack, I have not as urged by Mr Thomas taken it into account in answering the first two issues dealt with above.
Disposition
26.	For the reasons given above, I would refuse permission to appeal. The grounds raised do not on analysis have a real prospect of success.
Mr Justice Lewison:
27.	I agree.
Lord Justice Mummery:
28.	I also agree.