1990(08)LCX0014

BEFORE THE CEGAT, SPECIAL BENCH ‘C’, NEW DELHI

Shri G. Sankaran, President and Ms. Jyoti Balasundaram, Member (J)

VARIETY BOOK DEPOT

Versus

COLLECTOR OF CUSTOMS

Order No. 942/90-C, dated 20-8-1990 in C/Appeal No. 2061/90-C

Cases Quoted

KOHINOOR WOOLLEN MILLS v. COLLECTOR - 1990(03)LCX0045 Eq 1990 (049) ELT 0230 (TRI.)              [PARA 5]

C.S.T. v. AGARWAL & CO. – 1983 (013) ELT 0116 (BOM.)                                        [PARAS 5, 6]

HICO PRODUCTS LTD. v. COLLECTOR - 1988 (036) ELT 308                                     [PARA 5]

Advocated By: Shri M. Chatterjee, Consultant, for the Appellants.

Shri M. Jayaraman, SDR, for the Respondents.

[Order per : Jyoti Balasundaram, Member (J)]. — The classification under the Customs Tariff of the publication titled “Our Baby’s First Seven Years” is the subject-matter in dispute in this appeal.

2. The appellants herein imported a consignment of 35 post-parcels of the above-mentioned publication and sought clearance of goods free of duty under Heading 49.01 of the Customs Tariff Act, 1975, as ‘printed books’ against an Import Licence valid for “books & teaching aids” in terms of Para 134 of the Import & Export Policy 1985-88. The Addl. Collector of Customs, by Order dated. 04-04-1989, held that the publication cannot be treated as books for children, falling within Para 134 of the Import & Export Policy and, therefore, held that the importation was in contravention of Import Trade Control restrictions and prohibitions imposed under Section 11 of the Customs Act, 1962 and confiscated the import with option to redeem the same on payment of a fine. The Additional Collector did not enter into the arena of merits of classification under the Customs Tariff which, according to him, was within the jurisdiction of the Assistant Collector, he being the proper officer for the purpose. In appeal, the Tribunal by its Order No. 416/89 dated 13-10-1989, reversed the order of the Additional Collector, holding that the publication is a book validly imported under the ITC Policy 1985-88.

3. The issue of classification was decided by the Assistant Collector of Customs, who, by Order dated 5-5-1989, classified the import under Heading 4820.10/49.11 (since both headings carry same rate of duty). The Collector of Customs (Appeals), by Order dated 29-03-1990, classified the items under Heading 48.20 as “diaries and similar articles”. Hence this appeal wherein the appellants claim classification under Heading 49.01 as books, attracting nil rate of duty.

4. We have heard Shri M. Chatterjee, Ld. Consultant for the appellants and Shri M. Jayaraman, Ld. S.D.R. for the respondent.

5. The first submission of the appellants is that the finding of the Tribunal in its Order dated 13-10-1989 that the publication is a book for ITC purposes is binding for the purpose of classification under the Customs Tariff Act. In this context, the Ld. Consultant invites attention to Para 59(1) (2) & (3) of the Import Export Policy 1985-88, which reads as follows :-

Classification of Items:

“59. (1) - The Schedule I to the Imports (Control) Order, 1955, reproduced in Appendix I-B to this Book, commonly known as the I.T.C. Schedule, contains the classification of all the articles that enter into the import trade.

(2) - With effect from 1st April, 1976, the Schedule I to the Imports (Control) Order, 1955 reproduced in Appendix I-B to this Book has been revised in alignment with the First Schedule of the Customs Tariff Act, 1975 (51 of 1975). The Revised ITC Schedule contains 21 Sections sub-divided into 99 Chapters.

(3) - There is now a complete co-relation between ITC Classification and ICT Classification. Both these are based on BTN Classification. (Brussels Trade Nomenclature)."

He brought to our notice the finding in the order of this Tribunal dated 26-03-1990 [Order No. 178/90-NRB - M/s. Kohinoor Woollen Mills v. Collector of Customs, N. Delhi, reported in 1990(03)LCX0045 Eq 1990 (049) ELT 0230 (Tri.)] that it is apparent from Para 59 of the ITC Handbook 1985-88 that classification of the ITC Schedule is based upon Indian Customs Tariff Schedule which in turn is based on CCN. He cited the decision of the Hon’ble Bombay High Court in the case of. Commissioner of Sales-Tax v. Agamal& Co. [1983 (013) ELT 116] in support of the proposition that in a fiscal legislation, a general term used for describing any commodity covers that commodity or item or article in all its forms and varieties. He relied upon the decision of the Tribunal reported in 1988 (036) ELT 308 - (Hico Products Ltd. v. Collector of Customs) to support his stand that the Collector of Customs (Appeals) could not have ignored or brushed aside the decision of the Tribunal dated 13-10-1989 that the items in question are books.

6. We are unable to accept the arguments advanced in this score, as the issue of classification under the Customs Tariff is independent of the issue of validity of import under Import Licence issued under the ITC Policy. Special Benches have been constituted for the purpose of deciding classification of goods and decisions rendered solely in the context of Import Trade Control (as in the case of the North-Regional-Bench decision referred to supra) cannot be considered as binding on Special Benches while deciding questions of classification under the Customs Tariff Schedule. We cannot subscribe to the view that classification for the purpose of Import Trade Control is binding in relation to Customs Tariff classification. The decision of the Bombay High Court (supra) is distinguishable from the facts of this case, inasmuch as, in that case dealing with the interpretation of milk in powder form under the Bombay Sales-Tax Act, 1959, there were no guidelines for interpretation under the Act while in the case before us, there are guidelines having legal force in the form of General Rules for Interpretation of the Schedule to the Customs Tariff Act, Section Notes and Chapter Notes.

7. Now, let us turn to the question of classification of the imported publication. We have seen the publication. It is described as “a record book which will prove of value to parents, doctors & schools as the child grows to maturity”. It is meant for keeping a record of various aspects of a child’s growth from birth upto the age of 7. It covers various important events and milestones in a baby’s life such as “First Day Begins”, “Our Baby’s Early Behaviour”, “First Birthday”, “Each year’s growth and Development”. There are headings such as “Identification Marks - Birth Certificate”, “Congratulatory Messages”, “Baby’s Nest Egg”, “Personal Habits”, “Feeding Time”, “First Hair Cut”, “Nursery School”, “Stories and Books read to Child”, “Religious Records”, “Likes, Dislikes & Fears - favourite Toys & Pets” etc. Space is provided for affixing palm or footprints and to attach hospital identification. The heading “About Mother - About Baby” provides space for writing the name of the Doctor, Address, Phone No., etc. On Page 11 are to be placed the forms History of Pregnancy - Baby’s Examination - Neonatal Period. Space is provided on Pages 62 and 63 for the mother’s and father’s family tree. The publication contains a comprehensive examination record to be maintained by doctors-pediatricians, gynaecologists & parents (Pages 55-60 cover data regarding child’s bones & postural development, eyes & visual development, allergies, dental care, illness, accidents & surgery). In the foreword to the publication, the Associate Professor & Director of Ambulatory Services, Chicago Lying - in Hospital, says that, as a pediatrician, he finds the information and recorded details of the child’s family & personal growth & development a valuable aid to the careful assessment of medical needs. The publication is a basis for a child’s early years, which will be an extremely valuable permanent record for the child’s future health history. It is very detailed and each parent will want to decide how much information they wish to include. It is adaptable to everyone’s needs.

8. Let us examine the rival entries in the Tariff. Heading 49.01 covers printed books, brochures, leaflets and similar printed matters, whether or not in single sheets. The Explanatory Notes under this heading (which are only of persusive and not legal force) state that this heading covers virtually all publications and printed reading matter, illustrated or not, with the exception of publicity matter and products more specifically covered by other headings of the Chapter. It includes:-

The publication does not contain textual material which is essential for classification under Heading 49.01. Reference by the Ld. Consultant to Pages 20, 32 and 57 containing entries as to “Baby’s Nutrition”, “Introduction to life & love” and “Allergies” are not, in our view determinative of classification. Also the numbering of the pages (not found in stationery items) will not ipso facto make the publication a book. Hence classification under Heading 49.01 is ruled out.

9. Let us now turn to the other rival entry i.e. Heading 48.20. It covers: registers, account books, note books, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (loose-leaf or other), interleaved carbon sets and other articles of stationery, of paper or paper-board, albums for samples or for collections and book covers, of paper or paper-board.

The Explanatory Notes provide that articles of this heading somtimes contain a considerable amount of printed matter but are classified in this heading (and not in Chapter 49) provided that the articles are essentially for completion in manuscript or typescript.

10. The publication is a comprehensive record book containing valuable information about the child for parents, doctors and schools. Though there is considerable printed matter, the essential details are to be filled in by parents and/or doctors in typescript or manuscript. Without such details being entered in the various columns, the book would lose its intrinsic value and would be worthless and meaningless. Only on the columns being completed does the publication become informative to a parent and/or doctor of the child whose particulars are entered in it. The publication is not of any interest to a parent and/or doctor and/or school other than that of the child whose details it contains. It is not a diary which is defined in the Chambers Dictionary as “a daily record, a book for making daily records, noting engagements etc.” and in Webster’s Dictionary as “a daily written record especially of the writer’s own experiences. However, being a record book, it is an article similar to a diary, falling under Heading 48.20. The imports are therefore, assessable under Heading 48.20 as articles similar to diaries.

11. In the light of the above discussion, we uphold the impugned order and dismiss the appeal.

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Equivalent 1991 (51) ELT 349 (Tribunal)