Collector of Customs, Bombay vs Borosil Glass Works Ltd.>1999(08)LCX0106

1999(08)LCX0106

IN THE CEGAT, COURT NO. III, NEW DELHI

S/Shri P.C. Jain, Vice President and P.G. Chacko, Member (J)

COLLECTOR OF CUSTOMS, BOMBAY

Versus

BOROSIL GLASS WORKS LTD.

Order Nos. 781 and 782/99-C dated 18-8-1999 in Appeal Nos. C/1817 and 1818/94-C.

CASE CITED

Tractors and Farms Equipment Ltd. v. Collector — 1993(07)LCX0037 Eq 1993 (068) ELT 0234 (Tribunal) — Referred [Para 6]

REPRESENTED BY : Shri Ravinder Babu, JDR, for the Appellant.

Shri V. Lakshmikumaran, Advocate, for the Respondent.

[Order per : P.C. Jain, Vice President]. - Briefly stated facts of this case are as follows :-

The respondents herein imported one transparency and two prints of drawings and lay out plans. On examination of the goods Customs authorities alleged that the transparency has been drawn through mechanical process and not by hand and other drawings are ammonia prints. A show cause notice was issued that the goods cannot be classified under Tariff Heading 49.06 as claimed by the respondents. On adjudication, the Asstt. Collector held that the transparency has been drawn through a mechanical process and not by hand. Therefore, the transparancy will not fall under Tariff Heading 49.06. It will fall under Tariff Heading 49.11. As regards ammonia prints, the adjudicating authority held that ammonia prints are not photographic prints which alone are covered by Tariff Heading 49.06. Therefore, the classification of all the goods was made by the Asstt. Collector in the order-in-original under Tariff Heading 49.11.

2. On appeal the respondents herein pleaded as they had pleaded before the original authority, that the transparency is nothing but drawing by hand with sophisticated tools. They also pleaded that ammonia prints are photographic prints. The Collector (A) held by a detailed discussion that ammonia prints are also photographic prints, but we note at this stage that the Collector (A) did not give any finding on the plea of the respondents herein or on the finding of the adjudicating authority whether the transparency was drawn by hand or was drawn through a mechanical process.

3. Against the said order passed by Collector (A), Revenue has now come in appeal before the Tribunal. Grounds of appeal taken by the Revenue are entirely on the question whether ammonia prints are photographic prints or not. However, the ld. JDR Shri Ravinder Babu for the Revenue submits, apart from reiterating the grounds regarding ammonia prints not being photographic prints that the original finding of the adjudicating authority regarding transparency has not been set aside by the lower authority and therefore that finding still remains valid. Consequently, it has to be held by the Tribunal that the transparency has to be treated as done through mechanical process and therefore would not be covered by Tariff Heading 49.06. He further submits, a photographic print would also not be under Tariff Heading 49.06 because photographic prints should be of the original drawing by hand. He therefore, submits that the entire case is against the respondents herein and the appeal deserves to be allowed. In any case, he submits, that the appellate authority has not given any finding on the question whether the transparency is drawn by hand or through mechanical process, the matter at best can go back for re-adjudication by the lower appellate authority.

4. Opposing the contentions, ld. Advocate/ Shri V. Lakshmikumaran for the respondents submits that the Asstt. Collector no doubt gave two findings on the two types of goods, namely, transparency and prints imported by the respondents. He also admits that the lower appellate authority has given its findings only with regard to the ammonia prints holding that they are photographic prints and the said lower appellate authority has not given any finding with regard to transparency. He, however, submits that by allowing the appeal of the respondents, the lower appellate authority should be deemed to have given a finding on transparency in favour of the appellants to the effect that the transparency has been drawn by hand and therefore, he submits that the Tribunal should also hold accordingly, because there is no ground by Revenue taken against this finding of the lower appellate authority regarding transparency.

5. We have carefully considered the pleas advanced from both sides. We observe, as admitted to both sides, that the lower appellate authority has not given any finding whether the transparency imported by the respondents herein is drawn by hand or through mechanical process. It is also not disputed that the original authority has given a finding that the transparency has been drawn through a mechanical process and not by hand. The finding of the lower appellate authority regarding the ammonia prints is that these are photographic prints because the expression ‘photographic’ in an extended sense will mean a process by which visible images are formed directly or indirectly, by the action of light or other forms of radiations on photo sensitive surfaces. The lower appellate authority has drawn this meaning of the term ‘photographic’ from Chapter Note 2 of Chapter 37 of the Customs Tariff Act, 1975. Similar is the position of the expression ‘photography’ in Webster’s Dictionary, which is as follows :-

The art or the process of obtaining accurate representations of objects by means of the chemical action of light or other kinds of radiant energy on specially treated surfaces.

6. After having heard both sides and even after considering the judgments of the Tribunal in the case of Tractors and Farms Equipment Ltd. [1993 (068) ELT 234] we are clearly of the view that the expression ‘photographic’ or ‘photography’ would include the process of obtaining accurate representation of objects by means of chemical action of light or other kinds of radiant energy on specially treated surfaces as has been defined in Webster’s Dictionary. We therefore, hold that ammonia prints are photographic prints referred to in Tariff Heading 49.06 of the Customs Tariff. We however, find that the lower appellate authority has not given any finding on the transparency having been drawn through mechanical process or by hand, although there was a finding of the original authority that the transparency was drawn through a mechanical process. In this respect, there is a flaw in the impugned order passed by lower appellate authority and the said authority has not applied its mind to classification of the transparency. Consequently, we are of the view that the matter is fit for remand so far as question of transparency is concerned. We therefore, remand the matter to the lower appellate authority regarding the classification of transparency - whether it will fall under Tariff Heading 49.06 or 49.11. This classification, we may say, will depend on the finding of fact whether the transparency has been drawn through mechanical process or by hand.

7. If the said authority comes to a conclusion that the transparency has not been drawn by hand as has been held by the adjudicating authority, then in that case, ammonia prints also would not fall under Tariff Heading 49.06 because it refers to “photographic prints of the foregoing”, that is photographic print of the original drawings drawn in hand. We therefore, remand the matter to the lower appellate authority for deciding the case afresh in the light of above observations after giving an opportunity of hearing to the respondents herein Appeals disposed of in the above manner.

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Equivalent 2002 (150) ELT 829 (Tri. - Del.)