1. This is a revision application filed before the Central Government (now transferred to the Appellate Tribunal under Section 131B of the Customs Act, 1962) against Order-in-Appeal No. S/49-1824/80R, dated 30-9-1980 passed by the Appellate Collector of Customs, Bombay.
2. M/s. Ramnord Research Laboratories Pvt. Ltd., Bombay imported one box containing 100 Rolls of 35mm Eastman Opaque Leader Film from their Overseas Suppliers, M/s Hollywood Film Co., U.S.A. and this consignment was shipped from Los Angeles per M.V. "President Taft" which arrived at Bombay per President Roosevelt on or about 2-3-1980. The Assistant Collector of Customs, Bombay assessed these goods under heading 39.01/06 (Artificial Resins, Plastic materials etc.) and also levied countervailing duty under corresponding item 15A of C.E.T. The appellants contested that classification and contended that these goods should be classified under tariff entry No. 37.01/08 (Photographic and Cinematographic goods). As per the contention of the appellants the goods imported by them are only Cinematographic film and if it is found that it is a plastic matter and not a sensitised film (Photographic) then the benefit of notification No. 26-Cus/79, dated 31-1-1979 should be extended to the appellants.
3. This contention of the appellants was not accepted either by the Assistant Collector of Customs, Bombay or the Appellate Collector of Customs, Bombay.
4. Aggrieved by the said order of the Appellate Collector of Customs dated 30-9-1980, M/s. Killick Nixon Ltd., the Clearing & Forwarding Agents of M/s. Ramnord Research Laboratories Pvt. Ltd. filed a revision application before the Central Government which was transferred to this Tribunal and is treated as an appeal.
5. We have heard Dr. N.R. Kantawala, Advocate for the appellants and Shri A.S. Sunder Rajan, J.D.R. for the department and have gone through the record.
6. The identity of the goods is not in dispute. The only question for determination before us is whether these goods should be classified under Customs Tariff heading No. 37.01/08 or under heading No. 39.01/06 and whether the benefit of Notification No. 221-Cus. dated 2-8-1976 be given to the appellants or not.
7. According to Dr. Kantawala, Advocate for the appellants, the goods under dispute are Leader Film and may be described as stock without photographic emulsion opaque, black on one side and white on the other, with perforations and for use in various types of processing machines and accordingly should be classified under Chapter 37 (photographic and cinematographic goods) of the Customs Tariff Act, 1975. According to him, goods should be classified according to its name, (Generic or Specific) and its end use and not according to the material it has been made from. Merely because an article is made from Organic Polymers (plastic) it is not decisive of classification under Chapter 39, Leader film are Cinematographic goods and should be classified accordingly and not as plastic just because it is made from plastic.
8. He submitted that the goods Leader films are Cinematographic goods used in their cine film processing machines and its purpose is to keep a continuous processing machine fully threaded in readiness for immediate use and to follow the last roll of camera film through the machine and so to maintain this condition.
9. He further submitted that Leader Film should be classified under Heading 37.01/08 as these goods are most akin to the cinematographic films mentioned in sub-headings 2 and 3 thereof. When the goods cannot be put into any particular item, interpretation rule 4 directs that they shall be classified under the heading most appropriate to the goods to which they are most akin. Since these goods do not fall within any heading of the tariff, by applying the said rule 4, they ought to be classified under heading 37.01/08.
10. The last submission made by the counsel of the appellant is that if these goods are to be classified under Chapter 39 of the C.T.A. then exemption notification No. 26/79, dated 31-1-1979 be made available to him because Leader Film has been considered universally as a strip of plastic made from Cellulose Acetate and are exempt from Customs duty under this notification.
11. Dr. Kantawala also relied upon the Indian Standard Institute Glossory of Terms and the American National Standard Nomenclature for motion picture films used in studios and processing laboratories in support of the contention that Leader Film is universally recognised as a strip of plastic made from cellulose acetate. Since cellulose acetate strips fall under Chapter 39 and are specifically mentioned in Notification No. 26, dated 31-1-1979, the benefit of the concessional rate of duty would be applicable to the subject goods.
12. Shri Sundar Rajan, appearing for the Respondent submitted that Chapter 37 was specific for photo and cine goods. The CCCN notes under Chapter 37 would show that only films sensitive to light or radiation fell within that Chapter. The goods imported were cellulose tri-acetate films and uncoated tri-acetate films would fall under Chapter 39. In this context, he filed extracts from the New Encyclopaedia Britannica.
The appellants had not, at the original stage, made a claim for the benefit of Customs Notification No. 26 of 1979, though they could have done so. The said Notification, in any event, covered only sheets and strips and the imported goods which were films, were not strips.
13. In this case, the goods in question are Leader Films made of Cellulose Acetate and are opaque, black on one side and white on the other. By no stretch of imagination, these goods can be said to be photographic and cinematographic goods which can be classified under Chapter 37 of the Customs Tariff Schedule, 1975. These are films but not pholographic or cine films and therefore cannot fall within the Tariff Item 37.01/08. Tariff heading 37.01/08 is limited only to photographic plates and films, sensitised, whether or not exposed or developed. It cannot cover such unsensitised films.
14. From the description and the material used in the manufacture of these Leader Films, it is apparent that it is a plastic matter and not sensitised film (photographic) which by no stretch of imagination can fall under Chapter 37 of the Customs Tariff (entry meant for photographic and cinematographic goods).
15. Chapter 39 of the Customs Tariff Schedule deals with "Artificial Resins and Plastic Materials, Cellulose Esters and Ethers any Articles thereof". These goods are made from Cellulose Plastic. These are films.
The mere fact that they are opaque and has side perforations does not mean that these are not articles made of plastic. They fall within the category of plastic films and the authorities below have correctly classified these goods under heading 39.01/06. The plea of the learned counsel of the appellant that, by applying interpretation rule 4, these goods ought to be classified under heading 37.01/08 is also not tenable. When these goods can squarely be classified under a particular tariff item i e. 39.07, then the question of applying interpretation rule 4 does not arise. For the same reason the question of involving interpretation Rule 3(a) does not arise. Interpretation rule 4 only comes into picture in case no specific heading exists in the tariff item for particular goods. As per this interpretation rule 4, goods not falling within any heading of the schedule shall be classified under the heading appropriate to the goods to which they are most akin. In this case these goods-Leader Film-cannot be said to be photographic and cinematographic goods or akin to them. They, being articles made of plastics, squarely fall within Chapter 39 of the Customs Tariff.
16. The submission of the learned counsel of the appellants that the benefit of Customs Notification No. 26/79, dated 31-1-1979 should be extended to the appellants is also not tenable in the present case. The benefit of this notification is limited to Cellulose Acetate Sheets/Strips. We have to see whether these goods-Leader Films-can be said to be sheets or strips. Admittedly, they cannot be sheets.
Question remains whether these are strips or films. If they are not strips, the benefit of this notification cannot be extended. The distinction between sheets and films of plastic is in the matter of thickness. The relevance of the American National Standard cited by Dr.
Kantawala is not clear. It deals with motion picture films i.e. colour negative, sound recording, release positive films etc. The subject "Leader Films" do not belong to this category of motion picture films at all. Indian Standard Intitule Glossary draws the distinction between sheets and films at a thickness of 250 microns. As per the invoice specification, the goods imported by the appellants have a thickness of (0.0083 inch) 207 microns and therefore they are films and not strips.
The Encyclopaedia Britannica (in 30 volumes), Maicropaedia-at P. 336- describes the Film structure and forms. As per the description given of a film, its thickness may range from 0.08 to 0.2 mm (0.003 to 0.008 inch). The appellants are not entitled to the benefit of notification No. 26/79-Cus., dated 31-1-79, as they have failed to show and prove that they squarely fall within the purview of this notification.
17. In these circumstances, we do not find any ground to interfere with the findings of the authority below. We therefore, reject the appeal.