1996(11)LCX0084
IN THE CEGAT, COURT NO. II, NEW DELHI
S/Shri S.L. Peeran, Member (J) and J.H. Joglekar, Member (T)
C. K. ENTERPRISES
Versus
COLLECTOR OF CUSTOMS, MADRAS
Order Nos. C/1480-1481/96-B, dated 14-11-1996 in Appeal Nos. C/86-87/90-B2
CASE CITED
Atul Glass Industries Ltd. v. Collector — 1986(07)LCX0018 Eq 1986 (025) ELT 0473 (SC) [Para 4]
Advocated By : Shri N.C. Sogani, Consultant, for the Appellant.
Shri S.N. Ojha, JDR, for the Respondents.
[Order per : J.H. Joglekar, Member (T)]. - These two appeals involved the same set of facts and are therefore, disposed of together by this common order.
2. The appellants imported KAWA Brand Cinematographic Projector Lens. The goods were assessed to duty under Heading 9002.11 of CTA. The appellants filed a refund claim seeking reclassification under [Heading] 98.06 read with Notification No. 69/87 and No. 96/86. The Assistant Collector held that the goods were classifiable under Heading 9002.11 and since the Notification did not cover this Tariff Item, the refund claim merited rejection. In his order, the Collector (Appeals) accepted the classification suggested by the appellants under Heading 98.06 on the ground that they were parts of projectors but denied the benefit of Notification No. 69/87 on the observations that ‘lens’ being articles of glass were excluded from the benefit of the Notification vide Clause (xiv) of the proviso to the Notification. The two appeals are against the common order dated 12-9-1989 of the Collector.
3. We have heard Shri N.C. Sogani, the Learned Consultant for the appellants and Shri S. N. Ojha, the Learned DR for the Revenue.
4. The Collector having accepted the classification of the contested goods under Heading 98.06, the limited question is whether the benefit of the Notification No. 69/87 was available or not? The Collector has accepted that the contested goods were parts of projectors specifically appearing against entry at Sl. No. 29 of this Notification, but has held the mounted lens as articles of glass. The Supreme Court judgment in the case of Atul Glass Industries Ltd v. Collector of Central Excise, as reported in 1986 (025) ELT 473 had brought out the difference between the glass and glassware. In the judgment, the Supreme Court has asked for application of a particular test when classifying the product. The relevant observations reads as under :-
“8. The test commonly applied to such Cases is; How is the product identified by the class or section of people dealing with or using the product? That is a test which is attracted whenever the statute does not contain any definition. Porritts and Spencer (Asia) Ltd v. State of Haryana 1978 (42) STC 433 = 1983 ELT 1607 (0SC). It is generally by its functional character that a product is so identified. In Commissioner of Sales Tax, U.P. v. Macneill & Barry Ltd., Kanpur (1985) 2 SCALE 1093 = 1985(11)LCX0020 Eq 1986 (023) ELT 0005 (SC), this Court expressed the view that ammonia paper and ferro paper, used for obtaining prints and sketches of site plans could not be described as paper as that word was used in common parlance. On the same basis the Orissa High Court held in State of Orissa v. Gestetner Duplicators (P) Ltd. (1974) 33 STC 333 that stencil paper could not be classified as paper for the purpose of the Orissa Sales Tax Act. It is a matter of common experience that the identity of an article is associated with its primary function. It is only logical that it should be so. When a consumer buys an article, he buys it because it performs a specific function for him. There is a mental association in the mind of the consumer between the article and the need it supplies in his life. It is the functional character of the article which identifies it in his mind. In the case of a glass mirror, the consumer recalls primarily the reflective function of the article more than anything else. It is a mirror, an article which reflects images. It is referred to as a glass mirror only because the word glass is descriptive of the mirror in that glass has been used as a medium for manufacturing the mirror.”
5. In the present case also the mental association of a person who orders lens would not be with glass but it would be with a projector. The Learned Collector in our opinion was totally wrong in describing the mounted projector lens as an article made of glass. His act of denying of benefit of Notification was based on this erroneous interpretation. In our opinion at the material time, the benefit of the cited Notification was available, we therefore, allow the appeals, set aside the Collector’s orders and direct consequential relief, if any.
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Equivalent 1997 (89) ELT 798 (Tribunal)