Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Living Media (I) Ltd. on 31 March, 1989
Equivalent citations: 2004(164)ELT359(TRI-DEL)
ORDER V.P. Gulati, Member (T)
1. This is an appeal against the order of Collector of Customs (Appeals), Bombay. The brief facts of the case are that the respondents imported goods described as Log Eeflo Automatic Film, Processor with standard accessories. The goods were assessed under Tariff Heading 90.10 of the Customs Tariff and the benefit of Notification No. 11/77-Cus., dated 15-1-1977 was denied to them. The respondents filed a refund claim claiming the benefit of Notification No. 11/77 before the Assistant Collector and their plea for refund was turned down by the Assistant Collector on the ground that the said Notification covered only Film processor and not the combined film/paper processor not withstanding the fact that the equipment imported was for the printing industry. The said notification for convenience of reference is reproduced below :
"In exercise of the powers conferred by Sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts automatic film processor, falling under Heading No. 90.10 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), when imported into India, from so much of that portion of the duty of customs leviable thereon which is specified in the said First Schedule, as is in excess of 40 per cent ad valorem :
Provided that it is proved to the satisfaction of the Assistant Collector of Customs that the automatic film processor has been imported into India for use in the printing industry".
The Collector of Customs (Appeals) however, allowed the appellant plea following the ratio of a decision of this Tribunal in the case of Andhra Patrika, Madras v. Collector of Customs, Madras [1983 (13) E.L.T. 1103 (Tribunal)].
2. The learned Jr. Departmental Representative for the Department was asked whether the Revenue has accepted this decision of the Tribunal or had filed an appeal before the Supreme Court, he stated that he had no information whether in the case of Andhra Patrika, the Department has gone in appeal but stated that in other two cases relating to Kerala State Film Corporation covered by this Tribunal's Order No. 837/84 dated 2-11-84 [1989 (43) E.L.T. 534 (Tribunal)] and Order No. 472/82, dated 31-5-1983, the Department was in appeal before the Hon'ble Supreme Court where the issue involved was similar. He pointed out, no doubt there are a number of decisions of the Tribunal which are against the Revenue but pleaded that he would like to mention that in view of the ground taken in the appeal before us, the matter required to be examined.
3. The learned Departmental Representative pointed out that the processors for the printing industry were of three types. These are -
(1) Film Processor (2) Film/paper processor (3) Printing Plate Processor
He stated that the Film processor and film/paper processor were two separate sets of apparatus and with different characteristics and that inasmuch as, the processor covered under notification was only a film processor and the processor imported by the respondents belong to film paper processor. The benefit of the notification could not be extended. He pleaded that the notification should be strictly interpreted. In this connection, he cited the decision of the Hon'ble Calcutta High Court in the case of India Tobacco Co. v. Union of India [1988 (34) E.L.T. 473 (Cal.) = 1988 (17) ECR 148 para 28]. He pleaded that the Hon'ble High Court in that case as held that the benefit of ambiguity in the notification could not be given to the appellants.
4. Shri M.M. Sarin, learned Advocate for the respondents, pleaded that the goods imported by them were covered by the earlier order of the Tribunal in the case of Andhra Patrika and the Tribunal had followed this decision in other cases extending the benefit of Notification No. 11/77. He pleaded that the assessment of the goods under Tariff Heading 90.10 was not in dispute and the issue only related to the benefit of the notification. He pleaded that the Tribunal had taken note of the fact that the film processor imported was capable of being used for processing of paper also and after going into all the aspects had extended the benefit of the notification in the earlier cases. He pleaded that the technology had been advancing and that this unit processed the film or the paper by the same process using the same developing media. Only the exposure and timing etc. were controlled.
5. The learned Departmental Representative in reply stated that it was not denied that there were three types of processor and inasmuch as the film processor and film/paper processor were different entities and benefit of notification could not be made available to the goods imported.
6. We observe that it is not in dispute that the equipment imported processes the films and is also used for processing the paper. This Tribunal had taken note of this fact and held as under in the case of Andhra Patrika (supra) :
"(i) it should be an automatic film processor falling under heading No. 90.10 of the Customs Tariff Act, 1975 and
(ii) it should be imported for use in the printing industry.
We find that both these conditions are fulfilled in the case before us. If, in addition to film processing the machine can perform the other function of paper processing as well, the exemption cannot be denied. Accordingly, we allow the appeal with consequential relief to the appellant."
7. We find no reason to depart from the decision of the Tribunal. No other decision contrary to this has been brought to our notice by the learned Departmental Representative. Following the decision of the Tribunal above, we dismiss the appeal of the Revenue.