Customs, Excise and Gold Tribunal - Delhi
Hindustan Aeronautics Ltd. vs Collector Of Customs on 2 August, 1985
Equivalent citations: 1985(22)ELT872(TRI-DEL)
ORDER
S. Venkatesan, Senior Vice-President
1. This appeal relates to an importation of "Bird Scaring Cartridges" and "Adaptor (Pistol Adaptor)" by M/s. Hindustan Aeronautics Limited. These were classified under Heading No. 93.01/07 of the Customs Tariff Schedule as "Arms and Ammunition ; parts thereof". The appellants made a refund claim, on the ground that the goods were classifiable under Heading No. 85.16/27 (1) as "Electric traffic control equipment for railways, roads or inland waterways and equipment used for similar purposes in port installations or upon airfields". Their refund claim and their appeal to the Appellate Collector having been rejected, they filed a revision petition to the Central Government which has been transferred to the Tribunal. Their plea in the revision application is also for re-assessment under Heading No. 85.16.
2. The appellants have not been able to file a copy of the Order-in Original passed by the Assistant Collector. Nor could the Departmental Representative, in spite of efforts, obtain a copy. We have, therefore, had to rely on the Order-in-Appeal and other available documents.
3. The appellants had, with their revision application, submitted a leaflet from the manufacturers of the cartridges. The use of the cartridges has been explained in this leaflet as under :-
"Birds on airport runways present a major hazard to the movement of aircraft, and every year throughout the world they cause many millions of pounds worth of damage. The aircraft are particul arly vulnerable during take-off and landing when they can be struck by flying birds or have them sucked into an engine intake. The Pains-Wessex Bird Scaring Cartridge is a simple and inexpensive means of keeping runways free of birds by driving them into an area where they can do No harm. It is used from a Very Pistol fitted with a special liner, or from an unchoked shot gun. The Cartridge, which is normally fired at an angle of 45°, ejects a projectile that emits a yellow flare trace in flight and explodes with a loud report just before hitting the ground."
4. There is No literature or other material to explain the nature or function of the "adaptor".
5. Appearing before us for the appellants, Shri Mehra submitted that the cartridges were meant for scaring away birds and making the airport runway safe for landing, and should be classified under Heading No. 85.16. It was pointed out to him that this could hardly be called control of air traffic. It was also pointed out to him that Heading No. 85.16, under which the goods were claimed, came within Chapter 85 of the Customs Tariff Schedule, pertain ing to "Electrical Machinery and Equipment ; Parts thereof". Heading No. 85.16 itself referred to electric traffic control equipment etc. Shri Mehra was asked how the cartridges and the pistol adaptor could be brought within this heading, as they were plainly not electrically operated. Shri Mehra's reply was that the latter part of the heading did not specifically state that the equipment should be electrical in nature.
6. As regards the cartridges, Shri Mehra submitted that, if not classifi able under Heading No. 85.16, they would be classifiable under Heading No. 36.08. He specifically referred to the Explanatory Notes under Chapter 36 of the CCCN, wherein Very flares, rockets etc., were shown as classifiable under Heading No. 36.05.
7. For the Department, Shri Vineet Ohri submitted that the "adaptor" was nothing but a Very pistol. The CCCN Explanatory Notes under Chapter 93 at page 1696, made it clear that Very pistols were covered by the Chapter. According to him the pistol had been correctly classified. If the adaptor was a part of the pistol, it should be classified under the heading applicable to the pistol itself.
8. As regards the cartridges, Shri Ohri submitted that Chapter 36 was not relevant. The cartridges should be classified under Heading No. 93.01/07, which covered "arms and ammunition ; parts thereof".
9. We have carefully considered the submissions made. We find that Heading No. 85.16 is obviously inapplicable to the goods. It is quite clear from the literature furnished by the appellants that their function is to scare off birds which would present a hazard to aircraft. Their function may be to control the movements of birds, but not to control aircraft. Apart from this, it is quite clear, both from the CCCN and from the wording of Heading No. 85.16, that it would not cover non-electrical equipment. Even though the latter part of this heading does not use the word "electrical", the principle of harmonious construction would demand that we do not interpret only this part of the heading in a manner different from that of the other headings of Chapter 85. We accordingly find that the appellants' claim for classification under Heading No. 85.16 is misconceived and inadmissible.
10. As already observed, we do not have before us either the Order-in Original or any literature or other material describing the "adaptor". We were therefore, reluctant to rule on the classification of the goods, particularly as it is not strictly necessary in terms of the claim made in the appeal and before the lower authorities, which is only for reclassification under Heading No. 85.16. Nevertheless, as both sides requested a ruling regarding these two Articles, we are giving one on the basis of the material available to us.
11. As already observed, Very pistols which are used for the discharge of signal flares, are classifiable under Heading No. 93.04 of the CCCN. The function of the pistol for firing the bird scaring cartridges is similar to that of a Very pistol. It should, therefore, be similarly classifiable under Heading No. 93.01/07 of the Customs Tariff Schedule. The adaptor can be considered to be a pistol part or an attachment to the pistol, and it would, therefore, also be classifiable under Heading No. 93.01/07, which also covers parts of arms.
12. As regards the cartridges, they could in a sense be considered as "ammunition". It however appears to us that they would more appropriately be classifiable under Heading No. 36.01/08 which covers inter alia "pyro technic Articles (for example, fireworks, railway fog sign signals, amorces, rain rockets). These Articles fall under Heading No. 36.05 of the CCCN. The Explanatory Notes relating to this heading (page 523) contain the follow ing explanation :-
"This heading covers Articles which contain inflammable, combustible or explosive materials and which are generally intended to produce flames, smoke, or light or sound effects. They may be used for signalling or for entertainment purposes, for example : Very flares, rockets, Roman candles, Bengal matches and lights and other fireworks, explosive corks, miniature pyrotechnic ammunition for toys, caps for toy pistols, snaps for Christmas crackers, etc.".
The bird scaring cartridges, as described in the literature of the manu facturers, are seen to produce light and sound effects, and are somewhat similar to Very flares. Accordingly, we consider that they would be classifiable under heading No. 36.01/08, keeping in mind the Explanatory Notes repro duced above.
13. We find that the rate of duty applicable to Heading No. 36.01/08 is the same as that applicable to Heading No. 93.01/07. It appears that this was the position also at the time of import of the goods. No claim was made earlier for classification under Heading No. 36.01/08. We do not, therefore, consider it necessary to order reclassification of the bird scaring cartridges under Heading No. 36.01/08, which in any case would be an academic exer cise. In the view we have taken, we find that No relief is due to the appel lants. The appeal stands disposed of accordingly.