2001(06)LCX0166

IN THE CEGAT, SOUTH ZONAL BENCH, BANGALORE

S/Shri G.A. Brahma Deva, Member (J) and S.S. Sekhon, Member (T)

R.C.I. INDIA (P) LTD.

Versus

COMMISSIONER OF CUSTOMS, COCHIN

Final Order No. 1239/2001, dated 29-6-2001 in Appeal No. C/R-352/97

Advocated By :   Shri R.C. Sridhar, Advocate, for the Appellant.

Shri Thomas George, JDR, for the Respondent.

[Order per : S.S. Sekhon, Member (T)]. - The appellant, a Private Ltd., Company is an establishment in India of a World Wide Organisation to promote the cause of/and provides Service and information to the member joining the RCI Club through time share establishment existing in India. They imported 2,500 copies of what they call ‘Directories’ from the parent Organisation in UK to be supplied free of charge, claiming classification under Heading 4901.99 read with Notification 25/1995 at NIL rate. The Authorities below assessed the goods under 4911.10 and demanded duty which was paid under protest. The present appeal is against this classification, of the Lower Authorities.

2. We have heard both and find -

(a)     The entity under dispute, is in the form of a paper back bound book form titled “The World of RCI Holidays.” On perusal of the same it is found to be for a particular year. [The sample produced by the Advocate is for the year 1994/95 consisting of pages 1 to 372 (including the covers)]. On the Cover Inner page is index having the Contents : Listed with the page No. and titles -

The detailed information is thereafter listed at the respective pages. A perusal of the Index of contents and the pages does not convince us that the entity is a Directory, since we find the Concise Oxford Dictionary of Current English Sixth Edition defines

“Dictionary n. Book with list of telephone subscribers, inhabitants of district, members of profession etc., with various details;”

Yet, the entity under dispute does not list Alphabetically, any particular matter, aspect of the contents of an information type on various aspects.

(b)     The lower authorities have found it to be a publication more in the nature of Advertising Material on the Holiday Resorts rather than a mere Directory; since it gave lot of photographs and certain offers of advertising kind. The Commissioner (Appeals) on perusal has found -

        “A perusal of copy of the publication indicates that the publication is in the nature of publicity for various types of holiday resorts especially in various countries and the arrangements which exist and the advantages that can be accrued for banking holidays for various places. The publication indicates that even though in a number of cases, their holiday resorts are not completed at the same are advertised in the publication. For it to be a mere directory, it should have the details of only those resorts which exist at present, prima facie publishing the details of resorts which are under process of construction becomes more in the nature of publicity. For mere a directory, this type of offer need not be made. The Original Authority has also rightly pointed out that the publication gives informations as to how to become a member and various types of advantages that accrue to a member. That being so, it becomes more in the nature of publicity material and is not mere a reference book giving details of holiday homes as they exist.”

(c)      We find that HSN notes under 49.11, exclude Newspapers periodicals and Journals, whether or not containing entertaining materials, from Heading 4911 and recommend for the same, Heading 4107 or 4902 could be more appropriate. From the details given in this ‘Annual Publication of Resorts, Complete and even Incomplete and other details of memberships etc.’ we find, the entity to be more akin to be a Journal of Activities of RCI, for, admittedly, restrictive circulation. It would thus, appear to be covered under Heading 4902.90, when we read Heading Note No. 2 under Heading 4902 of HSN which is as under -

“Section X

49.02/04

(2)   Journals and other periodicals, issued weekly, fortnightly, monthly, quarterly or half-yearly, either in the form of newspapers or as paperbound publications. They may be mainly devoted to the publication of intelligence on subjects of a specialised nature or sectional interest (e.g., legal, medical, financial, commercial, fashion or sporting), in which case they are frequently published by or for organizations of the interests concerned. Or they may be of more general interest, such as the ordinary fiction magazine. These include periodicals published by or for named industrial concerns (e.g., motor car manufacturers) to promote interest in their products, staff journals normally having circulation only within the industrial, etc., organizations concerned and periodicals such as fashion magazines which may be issued by a trade or an association for publicity purposes.

Parts of large works (such as books of reference) sometimes published in weekly, fortnightly, etc., instalments over a limited and predetermined period are not regarded as periodicals but are classified in Heading 49.01.]

Supplements such as pictures, patterns etc., issued with newspapers or periodicals and normally sold therewith, are regarded as forming part of the publication.

Waste paper consisting of old newspapers, journals or periodicals falls in Heading 47.07.”

          Since the entity, admittedly promotes the interest of RCI, in admittedly limited and restricted circulation, it can not be, Advertising material. Advertisements are meant for Public at large, while promotional material would be for restricted audiences, as in this case. It could be therefore, considered more appropriately, as promotional material and may be appropriately classified under 4903. When we find the heading note of HSN under Heading 4901 to exclude ‘publicity material and matter more specifically covered by Heading 4902.’ We cannot therefore, find the same to be covered under Heading 4901, as claimed by the appellants or under 4911.99 as classified by the lower authorities.

(d)     Since we do not find Heading 4911.20 as confirmed by the lower authorities nor Heading 4901.99 as claimed by the appellants to be correct but Heading 4902.90 to be more appropriate, for Journals of this kind, we would remand the matter back to the Original Authority, to consider the issue of classification under 4902.90 after placing the appellants on notice and hearing them on this issue.

3. In view of our findings, the appeal is allowed for de novo decision in above terms.

Equivalent 2001 (137) ELT 1417 (Tri. - Bang.)

Equivalent 2001 (046) RLT 0178