Custom, Excise & Service Tax Tribunal
Touchwood Industries vs Delhi-Iv on 20 February, 2020
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
CHANDIGARH
REGIONAL BENCH - COURT NO. I
Customs Appeal No. 3145 of 2012
[Arising out of Order-in-Appeal No. 89/CUS/APPL/DLH-IV/2012 dated 09.08.2012
passed by the Commissioner of CE, (Appeals), Delhi-IV, Faridabad]
Touchwood Industries ......Appellant
487/18, Peera Garhi, Rohtak Road,
New Delhi
VERSUS
Commissioner of Customs, Delhi-IV ......Respondent
Inland Container Depot, Tughlakabad, New Delhi
APPEARANCE:
Present for the Appellant: None / On merits
Present for the Respondent: Mr. Bhasha Ram & Mr. Amandeep Kumar, ARs
CORAM: HON'BLE MR. S. S. GARG, MEMBER (JUDICIAL)
HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL)
FINAL ORDER NO. 60214/2020
DATE OF HEARING: 18.02.2020
DATE OF DECISION: 20.02.2020
PER: SANJIV SRIVASTAVA
This appeal is directed against Order-in-Appeal No.
89/CUS/APPL/DLH-IV/2012 dated 09.08.2012 of Commissioner of
Central Excise (Appeals) Delhi-IV, Faridabad. By the impugned
order, the Commissioner (Appeals) upheld the Order-in-Original No.
557/DC/ICD/MS/2011 dated 11.02.2011 holding as follows:
2 Customs Appeal No. 3145 of 2012
"I order the goods be assessed to duty by classifying the same
under Customs Tariff heading 49119990."
2.1 The appellant had filed Bill of Entry No. 4921487 dated
14.10.2011 for clearance of goods by describing them as "Educational
Charts" and classification under Custom Tariff Heading 49059990 and
attracting duty at "Nil" rate. They declared the value of the goods as
Rs. 32,89,200/-.
2.2 The goods were subjected to 1st Check examination. The shed
recorded the following examination report:
"O/E 100% of the goods in the presence of representative of
CHA and found to contain Educational Charts as per Invoice, P/L
and B/L. Description and Quantity checked. As far as nature of
goods is concerned, Historical and Elementary Educational charts
were found during the examination. Samples put up to group for
perusal ..."
2.3 After considering the written submissions made by the
appellant vide his letter dated 04.11.2011, the Deputy Commissioner
adjudicated the matter as per order referred in para 1, supra.
2.4 Aggrieved the appellant filed the appeal before the
Commissioner (Appeals), which has been dismissed by the
Commissioner (Appeals) as per the impugned order.
2.5 Aggrieved the appellant have filed this appeal before CESTAT.
3.1 In their appeal, the appellant has assailed the orders of the
lower authorities stating as follows:
3 Customs Appeal No. 3145 of 2012
The goods imported are educational charts as they impart
knowledge in respect of elementary learning such as language,
grammar, numerals, mathematical tables, basic hygiene etc.
They are in form of single sheet with colour printing on plastic
bearing the name of publisher. Thus these are printed material
for educational purposes. Examination report recorded by the
shed also says so.
Since the goods are in form of chart containing "Educational
Material" in printed form the same as per their understanding
merits classification under heading 49059990. The classification
made by the lower authorities under Heading 49119990 a is not
correct as heading 4911 is residuary heading.
Alternatively the goods imported by them merit classification as
„Printed Books" under CTH 4901 and exempt from payment of
duty under Notification No 21/2002-Cus dated 01.03.2002 (Sl
No 160), since they contain valuable information and material
for children in printed form having publisher‟s name and satisfy
the essential attributes of "printed book" such as (i) these are
available to public at large; (ii) sold at book stores; (iii)
recognized internationally as Book and assigned ISBN
(International Standard Book Number)
The decision of Wilco International [1992 (61) ELT 713 (T)] is
squarely holding that the goods imported are nothing but
Books.
4.1 Matter was listed for hearing on 18.02.2020. Appellant‟s
advocates "Piyush Kumar & Associates" have vide their letter dated
17.02.2020 received in the Registry on 17.02.2020, submitted as
follows:
"In this regard it is respectfully submitted that the above
mentioned Appellant is hereby submitting written brief of
arguments for kind perusal of the Hon‟ble Tribunal and therefore
prays Your Honour for disposal of the matter on the basis of
4 Customs Appeal No. 3145 of 2012
Memorandum of Appeal as well as brief of arguments, for which
act of kindness, the appellant shall ever be indebted."
4.2 Thus on we have heard Shri Amandeep Kumar, Authorized
Representative for the Revenue in the matter. We have also
examined the sample of the goods imported by the appellant which
were produced by the Authorized Representative.
4.3 In the written arguments filed by the Advocates for the
appellant, they have reiterated the same grounds as have been
stated by them in the Appeal Memorandum.
4.4 Learned Authorized Representative while reiterating the
findings recorded by the lower authorities submitted that:-
The classification of the goods as per the Custom Tariff is to be
determined as per the terms of the heading. He referred to the
terms of headings, 4901, 4905 & 4911 to argue that the goods
are appropriately classifiable under heading 4911 as has been
held by the authorities below;
He also referred to HSN Explanatory Notes for Chapter Heading
4905 and 4911 and argued that as per the HSN explanatory
notes for these chapters the goods have been held to be
appropriately classifiable under CTH 4911. He relied on the
decision of the Hon‟ble Apex Court in the case of Wood Craft
Products Ltd [1995 (77) ELT 23 (SC)] and the decision of the
Mumbai Bench of CESTAT in case of Camlin Ltd [2002 (144)
ELT 638 (T-Mum)] to establish that reliance placed by him on
the HSN Explanatory Notes, for the determination of the
classification of goods under Custom Tariff is justified.
The exemption claimed by the Appellant under Notification No
21/2002-Cus is not admissible to them as the goods do not
satisfy to the basic criteria to be called as goods. The decision
of tribunal in case of Wilco referred by the Appellant in their
5 Customs Appeal No. 3145 of 2012
appeal and submissions is distinguishable and not applicable. In
case of Wilco the goods imported were in fact the books as is
evident from para 4 and 5 of the said decision.
In case of Dilip Kumar & Co [2018 (361) ELT 577 (SC)], Hon‟ble
Supreme Court (Five Member Bench) has clearly laid down that
the fiscal statue need to be interpreted strictly as per the words
used in the statue and there is no room for purposive or other
manner of construction of statue.
He thus submits that appeal filed merits rejection.
5.1 We have considered the impugned order along with the
submissions made in the appeal, written submissions filed, and the
arguments advanced by the Authorized Representative at the time of
hearing of the appeal.
5.2 The competitive tariff entries under which the Classification has
been claimed by the appellant and determined by the Revenue are
reproduced below:
4901 PRINTED BOOKS, BROCHURES, LEAFLETS AND SIMILAR PRINTED
MATTER, WHETHER OR NOT IN SINGLE SHEETS
4901 10 - In single sheets, whether or not folded :
4901 10 10 --- Printed books
4901 10 20 --- Pamphlets, booklets, brochures, leaflets and similar printed matter
- Other
4901 91 00 -- Dictionaries and encyclopaedias, and serial instalments thereof
4901 99 00 -- Other
4905 MAPS AND HYDROGRAPHIC OR SIMILAR CHARTS OF ALL KINDS,
INCLUDING ATLASES, WALL MAPS, TOPOGRAPHICAL PLANS AND
GLOBES, PRINTED
4905 10 00 - Globes
- Other
6 Customs Appeal No. 3145 of 2012
4905 91 00 -- In Book form
4905 99 -- Other
4905 99 10 --- Geographical, hydrological, astronomical maps or charts
4905 99 90 --- Other
4911 OTHER PRINTED MATTER, INCLUDING PRINTED PICTURES AND
PHOTOGRAPHS
4911 10 - Trade advertising material, commercial catalogues and the like :
4911 10 10 --- Posters, printed
4911 10 20 --- Commercial catalogues
4911 10 30 --- Printed inlay cards
4911 10 90 --- Other
- Other
4911 91 00 -- Pictures, designs and photographs
4911 99 - Other
4911 99 10 --- Hard copy (printed) of computer software
4911 99 20 --- Plan and drawings for architectural engineering, industrial,
commercial, topographical or similar purposes reproduced with the
aid of computer or any other devices
4911 99 90 --- Other
5.3 The appellant while filing the Bill of Entry have claimed the
classification of the goods under heading 4905 99 90. From the
terms of the entry, it is very clear that heading 4905 is in respect of
the maps and globes and not in respect of the educational charts of
any other type. This is further very clear from the HSN Explanatory
Notes for the heading 4905 which reads as under:
"This heading covers all printed globes (for example, terrestrial,
lunar or celestial), maps, charts and plans designed to represent
the natural or artificial features of countries, town seas, the
heavens, etc., conventional signs being used to indicate contours
7 Customs Appeal No. 3145 of 2012
etc. Maps and charts incorporating advertising matter remain
classified in this heading.
This heading includes, inter alia:
Geographical maps (including sectors for globes), road maps,
wall maps, atlases, hydrographic, geographical and astronomical
charts, geological surveys, topographical plans (e.g. plans of
town or districts)
It also covers printed globes with internal lighting, provided they
are not merely toys"
5.4 It is very clear from the examination report and the sample
charts produced before us that these charts are not in nature of maps
or depicting the terrestrial features. Even appellant on the Bill of
Entry have not claimed that these goods are maps of any kind. When
it is not even the case of the importers that the imported goods are
maps, then they are definitely not justified in claiming the
classification under heading 4905. Hence their claim for classification
under heading 4905 99 90 has been rightly rejected by the lower
authorities. While rejecting the claim of classification under 4905 99
90, the Commissioner (Appeals) in para 8 of the impugned order
observed as follows:
"8. I find that it is an admitted fact on record that the
impugned imported goods were educational charts which
imparted knowledge in respect of elementary learning such as
language, grammar, mathematical, botanical, zoological, basic
hygiene etc., and the said charts were printed single sheets and
were not in bound form or with a binder. So far as appellants
plea for classification of the above educational charts under
Custom Tariff Heading 4905 (Sub-Heading 4905 99 90), is
concerned, I find that Customs Tariff Heading 4905 covers maps
and hydrographic or similar charts of all kinds, including atlases,
8 Customs Appeal No. 3145 of 2012
wall maps, topographical plans and globes, printed and as per
HSN Explanatory Notes, Chapter Heading 4905 covers all printed
globes (for example, terrestrial, lunar or celestial), maps, charts
and plans designed to represent the natural or artificial features
of countries, town seas, the heavens, etc. conventional signs
being used to indicate contours etc, therefore the basic purpose
of maps, chart, plans as covered under above Chapter 4905, is
to represent the natural or artificial feature of countries, town,
seas, the heavens etc., and I agree with the Adjudicating
Authority that the classification of the impugned educational
charts under Customs Chapter Heading 4905 Heading is not
proper."
5.5 The alternative claim of the appellant that the goods in question
should be classified under heading 4901 as printed books and the
benefit of exemption and the benefit of exemption at S No 160 of
Notification No. 21/2002-Cus dated 01.03.2002 should be allowed to
them has been rejected by the Commissioner (Appeals) stating as
follows:
"9. So far as classification of the impugned educational
charts under Customs Tariff Heading 4901 as "Printed Books" as
claimed by the Appellants, is concerned, I find that as per HSN
Explanatory Notes, Chapter Heading 4901 cover Books and
Booklets consisting essentially of textual matter of any kind, and
printed in any language or characters, including, Braille or
shorthand but in the instant case the subject goods printed
educational charts contained pictures etc being the main material
instead of text. Further the benefit of Notification No 21/2002-
Cus dated 01.03.2002 as amended, is available to the printed
books and printed manuals in bound form or in loose leaf form
with a binder and I agree with the Adjudicating authority that the
benefit of above Notification No 21/2002-Cus dated 01.03.2002
is not available to the impugned goods as the said goods were
9 Customs Appeal No. 3145 of 2012
simply printed single sheets and were not in bound form or with
a binder. Therefore the classification of the impugned goods as
"printed Books" is not at all justified as rightly held in the
impugned Order in Original. The judgement of the Hon‟ble
CESTAT in the case of Wilco International reported as 1992 (61)
ELT 713 (T) as relied upon by the appellants has already been
discussed by in the impugned Order in Original and I agree with
the Adjudicating Authority that the above judgement is not
applicable to the present case."
The decision of the Tribunal in case of Wilco International - 1992
(61) ELT 713 (Tribunal) is not an authority where the classification
of the goods under Custom Tariff was the issue. In the said case, the
goods imported were actually in the form of Books as is evident from
para 3, 4 and 5 of the said decision reproduced below:
"3. Shri J C Patel, the Ld. Advocate on behalf of appellants, at
the outset, indicated that he is not challenging the order passed
by the Additional Collector with regard to the classification under
Customs Tariff Act for the purpose of assessment of duty. He is
only challenging that part of the order holding that the goods
imported are toys and is a consumer item hit by Serial No. 172
of Appendix 2B. In other words he stated that his challenge in
the appeal is only against the order of confiscation for ITC
violation and imposition of penalty. He also stated that he would
seek for permission only to re-ship the goods without fine an
penalty.
4. Thereupon he argued on the merit of the appeal with
regard to the ITC angle. His arguments can be summed up as
below:
5. The item imported is Robert Dunken‟s Jungle Book which
contains board pages of "press out models" which are to be
taken out as per the instructions contained in the books. They
10 Customs Appeal No. 3145 of 2012
are to be assembled into the models by the children. He showed
us the sample of the disputed item"
It is settled authority that any decision passed by the statutory
authority, is limited to the issue considered and decided by us. When
the issue of classification of the goods in dispute was not an issue
before the bench then this decision cannot be an authority on the
subject.
5.6 Hon‟ble Supreme Court in case of Dilip Kumar & Company -
2018 (361) ELT 577 (S.C.) has laid down the principles of
interpretation of fiscal statues and notifications issued under these
statues as follows:
"25. We are not suggesting that literal rule de hors the strict
interpretation nor one should ignore to ascertain the
interplay between „strict interpretation‟ and „literal
interpretation‟. We may reiterate at the cost of
repetition that strict interpretation of a statute certainly involves
literal or plain meaning test. The other tools of interpretation,
namely contextual or purposive interpretation cannot be
applied nor any resort be made to look to other supporting
material, especially in taxation statutes. Indeed, it is
well settled that in a taxation statute, there is no room for
any intendment; that regard must be had to the clear
meaning of the words and that the matter should be governed
wholly by the language of the notification. Equity has no place in
interpretation of a tax statute. Strictly one has to look to the
language used; there is no room for searching
intendment nor drawing any presumption. Furthermore,
nothing has to be read into nor should anything be
implied other than essential inferences while considering a
taxation statute.
-------------
11 Customs Appeal No. 3145 of 2012
52. To sum up, we answer the reference holding as under - (1) Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. (2) When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. (3) The ratio in Sun Export case (supra) is not correct and all the decisions which took similar view as in Sun Export Case (supra) stands overruled."
By applying the principles of interpretation laid down by the Hon‟ble Apex Court as stated above, we are not in position to uphold the contention of the appellant in respect of admissibility of exemption under Notification No. 21/2002-Cus dated 01.03.2002. 5.7 While upholding the classification of the impugned goods under Heading 4911 99 90, the Commissioner (Appeals) in para 10 of her order has observed as follows:
"10. So far as classification of the impugned goods under Customs Tariff Heading 4911 as ordered in the impugned Order in Original is concerned, I find that Chapter Heading 4911 covers "other printed matter, including printed pictures and photographs"" and as per HSN explanatory Notes, Chapter 4911 covers Anatomical, Botanical etc, instrumental charts and diagrams. In the instant case also the impugned educational charts contained pictures for imparting knowledge in respect of elementary learning such as language,. Grammar, mathematical botanical, zoological, basic hygiene etc. and hence the said goods are rightly classifiable under Chapter Heading 4911 99 90 as ordered in the impugned Order in Original. Conclusively, I do 12 Customs Appeal No. 3145 of 2012 not see any legal infirmity in the impugned Order in Original which I legally sustainable and does not call to any interference."
5.8 We do not find any infirmity in the impugned order determining the classification of the impugned goods under Heading 4911 99 90, which is based on the terms of headings in Customs Tariff and HSN Explanatory Notes for the said heading. However to determine the practice of assessment elsewhere a bit of research undertaken by us made us lay hand on the import data available in respect of the same goods at "zuaba. com" which were cleared from the ICD Tughlakabad and Nhava Sheva Port classifying the said goods in same manner. The data downloaded is reproduced in table below:
Date CTH Port Description COO NO's Unit Total Price Price 16.2.15 49119990 ICD Educational Charts (Big) China 161000 8.64 1390725.39 TKD 16.2.15 49119990 Educational Charts (Small) China 126000 4.32 544196.89 16.2.15 49119990 Educational Charts (Small) China 1000 4.32 4319.02 29.2.16 49119990 Nhava Equivalent Fractions Chart USA 10 35 348 Sheva (Grade 4) (School Supplies) 29.2.16 49119990 Fish Chart (Grade 3) (School USA 93 42 3,886 Supplies) 29.2.16 49119990 Wipe Off Venn Diagram USA 10 59 592 Chart (Grade 4) (School Supplies) 29.2.16 49119990 Angles Chart (Grade 6 ) USA 7 35 244 (School Supplies) 29.2.16 49119990 Construction Chart (Grade 2) USA 107 35 3,726 (School Supplies) 29.2.16 49119990 Dictionary Learning Chart USA 10 35 348 (Grade 4) (School Supplies) 29.2.16 49119990 Exploring Reptiles Chart USA 10 42 418 (Grade 4) (School Supplies) 29.2.16 49119990 Healthy Habits Chart (Grade USA 93 348 32,382
3) (School Supplies) 29.2.16 49119990 Parts Of A Story Chart USA 10 35 348 (Grade 4) (School Supplies) 13 Customs Appeal No. 3145 of 2012 29.2.16 49119990 Writing A Research Report USA 42 35 1,462 Chart (Grade 5) (School Supplies) 29.2.16 49119990 Birds Chart (Grade 3) USA 93 42 3,886 (School Supplies) 29.2.16 49119990 Elements Of Friction Chart USA 10 77 766 (Grade 4) (School Supplies) 29.2.16 49119990 Insects Chart (Grade 2) USA 107 35 3,726 (School Supplies) 29.2.16 49119990 Mammals Chart (Grade 2) USA 107 35 3,726 (School Supplies) 29.2.16 49119990 Preposition Chart (Grade 5) USA 42 35 1,462 (School Supplies) 29.2.16 49119990 Proofreading Chart (Grade USA 42 35 1,462
5) (School Supplies) 29.2.16 49119990 Wipe Off Venn Diagram USA 16 59 947 Chart (Grade 7) (School Supplies) 29.2.16 49119990 Exploring Amphibians Chart USA 10 42 418 (Grade 4) (School Supplies) 29.2.16 49119990 Hieroglyphics Chart (Grade USA 42 35 1,462
5) (School Supplies) 29.2.16 49119990 Literary Genres Chart USA 7 268 1,877 (Grade 6) (School Supplies) 5.9 Hence we do not find merits in the appeal filed by the appellants.
6.1 The appeal is dismissed.
(Order pronounced in the court on 20.02.2020) (S. S. GARG) MEMBER (JUDICIAL) (SANJIV SRIVASTAVA) MEMBER (TECHNICAL) RA_Saifi