2001(11)LCX0121
IN THE CEGAT, SOUTH ZONAL BENCH, CHENNAI
S/Shri S.L. Peeran, Member (J) and Jeet Ram Kait, Member (T)
NET WORK LTD.
Versus
COMMISSIONER OF CUSTOMS, CHENNAI
Final Order No. 1914/2001, dated 7-11-2001 in Appeal No. C/608/96/Md
Advocated By : None, for the Appellant.
Shri G.S. Menon, SDR, for the Respondent.
[Order per : S.L. Peeran, Member (J) (Oral)]. - Appellants have not appeared despite issue of notice to them and to their Consultant M/s. M.G. Impex, Consultants. Notice has been issued for today’s hearing apart from six notices issued earlier.
2. The learned SDR submits after going through the order-in-appeal dated 16-7-96 that by the said order the Commissioner (Appeals) has classified the item Konica Medical Film Processor under Chapter 9010.10 and he has passed a very detailed order and classification sought under sub-heading 9022.11 cannot be upheld in view of the detailed reasoning given by the Commissioner (Appeals). He seeks for confirmation of the order as the order has been passed after due consideration of the submission made by the appellants. The Commissioner (Appeals) observed that with regard to the question as to whether the developer of X-ray film was capable of use as a developer in photographic film and vice versa, it was not possible to come to any conclusion in the absence of technical write-up or catalogue. Therefore, the plea of the appellants was rejected by the Commissioner (Appeals).
3. None turned up for the appellants despite issue of more than seven hearing notices. Therefore, the appeal is taken up for consideration on merits. From the finding portion of Paras 5 to 10 of the impugned order we find that the Commissioner (Appeals) has examined the issue in great detail and has rejected the appellants contention by upholding the classification of the item under sub-heading 9010.10 of the Tariff. The said paras are reproduced herein below :
FINDINGS
5. I have carefully considered the written and oral submissions made by the appellant through their Counsels.
6. The short point for decision in this case is whether the medical film processor imported by the appellant is classifiable under Heading 90.22 (sub-heading 9022.11) or under Heading 90.10 (sub-heading 9010.10).
7. Briefly stated, the facts are that the appellant imported Konica Medical Film Processor which was initially assessed under sub-heading 9010.10 and later re-assessed on the representation from the appellant under sub-heading 9022.11 at a lower rate of duty. Subsequently, a demand notice was issued for recovering duty differential as prima facie, the goods were found as assessable under sub-heading 9010.10. The demand was later confirmed and the appeal has now been filed by the appellant.
8. It is seen that an identical issue has already been decided by me vide M.Cus.770/95, dated 19-4-95, holding that the medical film processor assessable under sub-heading 9010.10. The grounds for coming to the above conclusion were as under :-
The sine qua non for the purpose of classification under Heading 90.22 was that the apparatus ought to be “based on the use of X-rays or of alpha, beta or gamma radiations”. In Harmonised Tariff, the words “apparatus based on the use of X-rays” have been explained as follows : “fundamental element of this apparatus is the unit containing the X-ray generating tube or tubes”. It was admitted by the appellant that the apparatus imported by them was not used for generating X-rays and it did not contain, obviously, the X-ray generating tube or tubes, nor it was based on the use of alpha, beta or gamma radiations. The apparatus was used only for developing X-ray films. Obviously, therefore, the question of its classification under Heading 90.22 did not arise.
9. As to the question of classification of the apparatus under Heading 90.10, it was observed that no distinction should be made between a photographic film developer and X-ray film developer in Customs Tariff. So far as photographic film and X-ray film were concerned, both were covered by Heading 37.02. Likewise, it would not be correct to think that the Customs Tariff made distinction between a developer of photographic film and a developer of X-ray film. As to the question whether the developer of X-ray film was capable of use as a developer in photographic film and vice versa, it was not possible to come to any conclusion in the absence of technical write-up or catalogue. However, even assuming that the impugned apparatus could not be used for developing photographic film and was exclusively meant for developing X-ray film, it was held that the above fact would not alter the material situation in so far as classification of the impugned goods was concerned. Under Rule 4 of the general rules for the interpretation of the Tariff Schedule, goods, which could not be classified in accordance with the Rules 1 to 3, shall be classified under the heading to which they are most akin. From this point of view also, it was held that there was no doubt that Heading 90.10 was the heading to which the impugned apparatus was most akin. For the above reasons, the alternative classification under sub-heading 9018.19, as pleaded for by the appellant is also ruled out, as photographic film developer falling under sub-heading 9010.10 is undoubtedly more akin to the impugned goods than electro-diagnostic apparatus falling under sub-heading 9018.19.
10. The ratio of the above decision squarely applies to the present case and, therefore, I am inclined to agree with the Lower Authority that the impugned developer was correctly classifiable under sub-heading 9010.10 and, therefore, the demand confirmed is maintainable.
ORDER
For the reasons stated above, the appeal is rejected.
4. On consideration of the submissions made, we notice that the appellants have not produced any material evidence to come to a conclusion different than the one arrived at by the authorities below. In this view of the matter, we find no merits in the appeal and we reject the appeal by confirming the impugned order.
Equivalent 2002 (141) ELT 0402 (Tri. - Chennai)