1996(07)LCX0057
IN THE CEGAT, COURT NO. II, NEW DELHI
Shri S.K. Bhatnagar, Vice President and Ms. Jyoti Balasundaram, Member (J)
COLLECTOR OF CUSTOMS, COCHIN
Versus
O.E.N. INDIA LIMITED
Final Order No. C/514/96-B, dated 15-7-1996 in Appeal No. C/2268/86-B
Advocated By : Shri Mohammed Ali, JDR, for the Appellant.
None, for the Respondents.
[Order per : S.K. Bhatnagar, Vice President]. - This is an appeal filed by the Department against the order of Collector (Appeals), Madras, dated 21-4-1986.
2. This matter had come up for hearing earlier and a miscellaneous Order No. C/11/96-B, dated 23-2-1996 was passed directing both the sides to file technical literature/write up and fixing the date of hearing as 4-4-1996. This order was communicated to both the sides.
3. In spite of notice, nobody has appeared for the appellants perhaps because in their letter dated 10th February, 1996, they had already requested the Tribunal to decide the case on the basis of records without their personal appearance.
4. The Assistant Commissioner has, on the other hand, sent a letter dated 28-3-1996 enclosing a copy of the technical write-up including a technical pamphlet containing general information and a letter of the respondents.
5. In these circumstances, we have perused the records and heard learned DR.
6. Learned DR stated that in this case, the respondents had imported inter alia a Video Monitor along with the bonded panel option. Of these, video monitors was cleared after classifying the goods under Heading 90.28(1) which covers electronic instruments. Subsequently, a demand notice for re-classifying the item under 85.18/27(1) was issued.
7. The Assistant Collector, however, re-classified the goods under 85.15(2). The respondents filed an appeal before the Collector who remanded the matter to the Assistant Collector for passing a speaking order. The matter was, therefore, again considered by the Assistant Collector and the impugned order-in-original was passed confirming the classification under 85.15(2). The appellants again approached the Collector (Appeals) who set aside the order on the ground that whereas the demand was issued for adding 85.18/27(1), the classification had been confirmed under 85.15(2) without due notice to the appellants. The Department has come up in appeal against this order of the Collector (Appeals) on the ground that the Collector has not passed any order on merits but had ordered payment of refund.
8. It also appears that the respondents had made detailed statements regarding various aspects of the item before the learned Collector (Appeals). In view of these submissions, on the last occasion when the matter came up before the Tribunal, it was felt that as many as four alternative tariff headings may be required to be considered; As the entries were of highly technical nature, the technical literature was necessary and consequently miscellaneous Order No. C/11/96-B, dated 23-2-1996 was passed and the registry was directed to issue copy thereof to the respondents as well. Thus, the respondents were also put to notice regarding all the possible entries.
9. The Assistant Commissioner of Customs has since sent a technical write-up alongwith a letter of the respondents dated July 13, 1981.
10. He would like to draw attention to the technical write-up which describes imported item in the following words :-
“The TTL 120/150 Data Monitor is a solid state raster scan display for data terminal application. The monitor is designed for high quality display of alphanumeric dot characters.”
11. After going through the submission which the respondents had made before the Collector (Appeals) and this technical write-up, he would like to submit with reference to each of the four rival entries as follows :-
(1) Heading 90.28 covers electrical measuring, checking, analysing or automatically controlling instruments and apparatus. Since from the technical write-up now produced, it is apparent that it is not such a type of instrument or apparatus, therefore, this entry will not be applicable.
Even otherwise, according to CCCN also, it is apparent that in accordance with Chapter Note 5, this heading is restricted to the type of instruments or apparatus for measuring or checking electrical quantities or detecting various rays or for measurement, checking or automatic control and various systems listed under this heading. From the monitor description given in the technical pamphlet, it does not fit in any of these categories. Hence, it has to be ruled out.
(2) The Heading 85.18/27 covers a large number of electrical items such as electrical capacitors for making and breaking electric circuits etc. mentioned in the heading and monitors as described in the technical pamphlet does not show that it is one of the types mentioned here.
(3) Heading 85.15(2) includes inter alia Radio-telegraphic and radio-telephonic transmission and reception apparatus and its sub-heading (2) includes television reception apparatus and that is why perhaps, the Assistant Collector had considered this heading as appropriate but the description of the item in the technical write-up shows that it is a data monitor designed for high quality of alphanumeric dot characters. Hence, although it might be working on the same principle, its design and function are different and therefore, before considering this entry any further, we have also to see Entry 85.15.
(4) According to CCCN also, the Entry 85.15 includes relay television transmitters for transmission of all kinds of television apparatus for mounting in aircraft, etc. and other industrial uses and not radio monitors, per se.
12. On the other hand, Entry 84.51/55 includes automatic data processing machines and units thereof and further parts and accessories suitable for use solely or principally with the above machines are also covered by sub-heading (2), itself.
13. In this connection, he would like to mention that the Monitor could also be `used as a static display remote from a data terminal or to accept TV, Video Signals’ as apparent from the technical pamphlet itself and therefore, basically, it has to be decided of the Heading 85.15 and 84.51/55 which is more specific or appropriate to cover these items.
14. In this connection, he would also like to draw attention to the submissions made before the Collector (Appeals) which had led the Bench to observe in the miscellaneous order that the question whether it could be considered as computer peripheral would also be required to be examined.
15. Hence, it is for consideration whether it could be considered as such and be classified under 84.51/55.
16. We have considered the above submissions and also taken into account the respondents’ letter dated 10-2-1996 and the submissions made by the respondents before the Collector (Appeals) regarding the item in question.
17. It is observed that in the grounds of appeal urged before Collector (Appeals), the following was stated by the respondents :-
“The appellants state that the Monitor TTL-120 imported by them is designed for display of alphanumeric dot characters; by means of a conversion kit it can be converted into a RD 120 capable of accepting composite Video signals. The conversion kit includes a composite video board intructions and other parts which, if incorporated in the set, will allow the monitor to accept composite video signals. It is contended that the monitor in the condition imported cannot be used as a T.V. picture tube. The appellants have given the characteristics of T.V. tubes and also of Monitor tubes and argued that T.V. picture tubes are different from Monitor tubes. The appellants also point out that a perusal of CN 232/83 would show that Cathode Ray Tubes are not the same as T.V. Picture Tubes. The CRT Monitor imported is a sub-assembly of Video-Terminal which is a computer peripheral; it can accept only signals from computer and display alphanumerals; it cannot display any T.V. image. They assert that lower authority’s observation regarding the inter-changeability of monitor tube as T.V. Picture Tube is wrong.”
In their letter dated 10-2-1996, they have emphasised as follows :-
“Monitor in the condition in which it is imported is not capable of use as a T.V. reception tube. Even though both uses Cathode Ray Tubes, the electronics that makes a video monitor with capability for displaying alphanumerics is different from electronics that is incorporated in CRT for T.V. usage.”
18. In their technical write-up forwarded by the Assistant Commissioner alongwith respondents’ letter dated July 13, 1981, it is mentioned inter alia as follows :-
“1. Video Monitor. This is not merely an electronic tube. But is consists of an electronic tube with the associated electronic circuitry and power supply. Also we point out that it is not a stand alone unit but forms a sub-assembly of the CRT Terminal.”
19. In view of the technical write-up now forwarded, it appears that the item in question is basically a data monitor in the nature of a solid state device for data terminal application. It is designed for high quality display of alphanumeric dot characters. It is significant that it refers to 120/150 Data Monitor. Of course, it is also mentioned that “the monitor can be used as a static display remoted from a data terminal or to accept T.V. video signals” but, then it could be used as receiver of T.V. signals only by conversion by means of a conversion kit. Here, we are concerned with the goods in the form in which they are imported and presented for assessment and not with modifications of its capability, capacity or its conversion for other uses to which it may be subjected after importation. We also note that the respondents have themselves stated that it can be used as a computer peripheral being in the nature of a sub-assembly of video terminal and it could accept signals from computer and display alphanumerals. In view of this position, we feel that the Entry 84.51/55 (2) is the most appropriate entry for classification of this item. Hence, we set aside the order of the Collector (Appeals) and direct the Assistant Collector to re-assess the goods in the light of above findings and grant consequential relief, if any found due to the respondents.
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Equivalent 1996 (87) ELT 317 (Tribunal)