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Kasturi and Sons Ltd. Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1984)(19)ELT183TriDel
AppellantKasturi and Sons Ltd.
RespondentCollector of Customs
Excerpt:
.....it.2. the dispute in the present proceedings turns on the correct classification under the import customs tariff schedule of 1975, of a consignment of "photo-sensitive nylon printing plates" imported by the appellants through the port of madras. the customs house assessed the goods to basic customs duty (the duty leviable with reference to the first schedule to the customs tariff act) under heading no. 39.01/07 and to additional (countervailing) duty of customs with reference to item no. 15a(2) of the central excise tariff schedule. the appellants cleared the goods on payment of the duty so assessed. later on, however, they filed a refund claim before the assistant collector contending that the goods were correctly assessable under heading no.84.34 of the customs tariff schedule and.....
Judgment:
1. The captioned appeal was initially filed as a Revision Application before the Central Government which,. under Section 131-B of the Customs Act, 1962, has come as transferred proceedings to this Tribunal for disposal as if it were an appeal filed before it.

2. The dispute in the present proceedings turns on the correct classification under the Import Customs Tariff Schedule of 1975, of a consignment of "Photo-Sensitive Nylon Printing Plates" imported by the appellants through the Port of Madras. The Customs House assessed the goods to basic Customs duty (the duty leviable with reference to the First Schedule to the Customs Tariff Act) under Heading No. 39.01/07 and to additional (countervailing) duty of Customs with reference to Item No. 15A(2) of the Central Excise Tariff Schedule. The appellants cleared the goods on payment of the duty so assessed. Later on, however, they filed a refund claim before the Assistant Collector contending that the goods were correctly assessable under Heading No.84.34 of the Customs Tariff Schedule and that no additional duty was leviable since similar goods were not manufactured in India. The Assistant Collector relied upon the examination report and notings on the reverse of the original Bill of Entry to the effect that the goods were found to be plastic sheets and, on this basis, he held that the classification under Heading No. 39.01/07 was in order. He also rejected the claim that the goods did not attract any additional duty on the ground that the imported goods fell under the tariff description in Item No. 15A(2)-CET. The Appellants preferred an appeal against this order. The Appellate Collector of Customs, after observing that the plates in question were specially prepared for printing puposes, accepted the appellants' contention that goods fell for classification under Heading No. 84.34 of the Customs Tariff Schedule and allowed consequential relief to the appellants. However, in so far as the levy of additional duty of Customs was concerned, he held that even though the plates were specially prepared for printing purposes, they would still fall under Item 15A-CET. On this basis, the claim for refund of additional duty was rejected. It is against this order that the appellants filed a Revision Application before the Central Government which has now come to us for disposal as if it were an appeal filed before us.

3. The appeal was heard on 9-12-1983. The appellants were represented by Shri S. Venkataraman and the Respondent by Shri A.S. Sunder Rajan.

4. The learned representative of the appellants made the following submissions :- (i) At the material time, there was no exact correlation between the entries in the Customs Tariff Schedule and the Central Excise Tariff Schedule relating to artificial or synthetic resines and plastic materials and articles thereof. It was only with the enactment of the Finance Bill, 1982 that complete alignment between the two tariff schedules came to be effected; (ii) At the material time, sub-item (2) of Item 15A-CET did not directly flow sub-item (1); (iii) The Assistant Collector went wrong when he upheld the classification of the goods under Heading No. 39.01/07 of the Customs Tariff Schedule; there was and there is no such heading in the Tariff; (iv) At the relevant time, Item No. 15A(2) referred only to articles made of plastics and the expression "Plastics" as defined to mean the various artificial or synthetic resins or plastic materials or cellulose esters and ethers included in sub-item (1) of the Item 15A. The manufacturer's literature at page 21 of the paper book would show that the sectional structure of the Photo-sensitive Nylon Printing plate comprised of a base film (polyester), an adhesive and anti-halation layer, a layer of photosensitive nylon resin and finally a cover film of polyester. Thus, the printing plates were not entirely made of the materials referred to in 15A(1)-CET but, on the other hand, they were composite articles; (v) It was anamolous on the part of the Appellate Collector to have rejected the appellants' contention that these were not ordinary plastic sheets falling under 15A(2)-CET after having accepted their contention that they were printing plates specially prepared for printing process falling under Heading No. 84.34 of the Customs Tariff Schedule; (vi) In the circumstances, the proper classification of the goods for additional duty purposes was under Item No. 68-CET.5. The learned Consultant said that he could not take the position (taken in the appeal memorandum) that no additional duty was at all chargeable on the subject goods on the ground that like articles were not manufactured in India.

(i) the appellants themselves seem to have classified the goods in the Bill of Entry under Heading No. 38.01/06 which the assessing officer would appear to have amended to read is 39.07; (ii) the appellants apparently did not protest against the assessment at the time of examination and classification of the goods; (iii) in the refund application; the appellants had not taken up the plea that the goods did not fall under 15A(2)-CET but only that no additional duty was leviable because like goods were not manufactured in India; (iv) from the manufacturer's literature at pages 20 to 22 of the paper book, it would be clear that the goods were really in the nature of photographic plates and the correct classification would, therefore, be Heading 37.01/08. However, since the rate of duty under this heading was the same as under Heading 39.07, the erroneous classification would not make any difference; (v) the goods were articles of plastic and item No. 15A (2) was more specific for the goods than item No. 68. In this connection, reliance was placed on the following decisions :- (vi) in the circumstances, the appellants' contentions were not tenable.

7. We have given careful consideration to the contention of both sides.

The Appellate Collector had upheld the contention of the appellants that the Photo-Sensitive Nylon Printing Plates imported by them were correctly assessable as printing plates falling within Heading No.84.34 of the Customs Tariff Schedule and not under Item 39.01/07 as classified and assessed by the lower authorities. (We may observe here that there is no Heading 39.01/07 in the Customs Tariff Schedule as mentioned in the Assistant Collectors's order. Presumably, he means 39.07 for, obviously, the goods imported not being in the nature of synthetic or artificial resins or plastic materials could not have fallen under 39.01/06). The relief sought for by the appellants in so far as the assessment to basic Customs duty is concerned has thus been granted to them by the Appellate Collector and it is not, therefore, necessary for us to determine the correct classification of the subject goods under the Customs Tariff Schedule. To the extent, however, the classification under the Customs Tariff Schedule can be of some help in arriving at the classification under the Central Excise Tariff Schedule (which is the only issue before us), a consideration of the same would not be out of place. The subject goods, as seen from the manufacture's literature at pages 20 to 22 of the paper book, works on the principle of photography. The cover film (polyester) is removed and the negative film is placed on the undeveloped plate. The plate is then exposed through the negative film to ultra violet light having lengths ranging from 300-400 mu. The negative film is then removed and the exposed plate is washed with water. The plate is then dried in a hot air drier after taking off the surface water by a sponge roll. The developed plate is exposed, after washing out again, to ultra violet light in order to get stability. It is, therefore, abundantly clear that the imported goods are photo-sensitive printing plates as is also apparent from the nomenclature given to them by the manufacturers : "Photosensitive Nylon Printing Plates". As seen from the CCCN Explanatory Notes on page 1281 (Volume 3) under Heading 84.34, sensitised plates (e.g., consisting of metal or artificial plastic material, coated with a sensitised photographic emulsion, or of a sheet of photo-sensitive artificial plastic material, whether or not affixed to a support of metal or other material) are excluded from the purview of the said Heading and arc shown to fall under Heading 37.01. If we turn to the Explanatory Notes under Heading 37.01 (page 528, volume 2), it is seen that, among the goods included under the said Heading, are printing plates which are not coated with an emulsion but consisting wholly or essentially of photo-sensitive artificial plastic material.

They may be affixed to a support of metal or other material. It thus appears to us that the more appropriate classification for the subject printing plates may have been Heading 37.01/08 rather than 84.34. We are not, however, required to and are not, therefore, expressing a verdict on this.

8. We shall now examine the question of classification with reference to Central Excise Tariff, which is the issue before us. The lower authorities have classified the goods with reference to Item No.15A(2)-CET, i.e. as articles made of plastics. The expression "Plastics" for the purpose of the said sub-item (2) has been defined by way of an Explanation in the tariff entry itself: "Plastics" means the various artificial or synthetic resins or plastic materials or cellulose esters and others included in sub-item (1).

9. It is clear from the above definition that for an article to be classified as an article made of plastics within the scope of sub-item (1), it has to be made of artificial or synthetic resins or plastic materials or cellulose esters and ethers specified or included in sub-item (1). Applying this test, let us see whether the subject printing plates can be said to be articles made of "Plastics". As seen from the manufacturers' technical literature, the sectional structure is shown as having a cover and base film both made of polyester and two other layers in between, one described as "adhesive and anti-halation layer" and the other "Photo-sensitive nylon resin layer". From the description of the method of use of the printing plates, it appears that it is the photo-sensitive nylon resin layer that gives the printing plate its photo-sensitivity to ultra violet light and makes it useful as a printing plate. Whereas the cover and the base film made of polyester are definitely made of plastics and fall under sub-item (2) of Item 15A GET, the two intervening layers cannot be said to be so.

The exact nature of the adhesive and anti-exhalation layer is not described but the other layer, namely, the photo-sensitive nylon resin layer cannot be said to be covered by the terminology "articles of plastics" as defined in 15A(2)-CET but appears to be a layer of the resin itself. The composite article consisting of the 4 layers as described above, which is what the printing plate is, cannot, therefore, be said to clearly and indubitably fall for classification under Item 15A(2)-CET. As we have seen earlier, while the Appellate Collector has classified them as printing plates falling under Heading No. 84.34 of the Customs Tariff Schedule, another view could be that it falls under Heading 37.01/08 as a Photo-sensitive plate or sheet. In either view of the matter and having regard to the view just expressed, namely, that the subject printing plates cannot be said to be "articles of plastics" as camprehended in Item 15A(2)-CET, the only other possible classification would be Item No. 68-CET as "All other goods, not elsewhere specified". The appellants are not contending before us, as they contended before the lower authorities, that the goods are not at all liable to additional duty of Customs on the ground that like articles are not manufactured in India.

10. We have carefully perused the decisions cited by the learned Deptl.

Representative. In 1981 ELT 653 (Guj.), the articles in dispute were plastic bangles made out of methyl methacrylate monomer. The Court held that since the raw material was a monomer and not a plastic material (although by subjecting the monomer to a polymerisation process), the plastic bangles made out of the monomer would not be liable to duty under Item 15A of the Central Excise Tariff. We do not see how this decision is relevant in the present case where we are concerned with a composite article.

In 1981 ELT 734 (Bom.), the articles under consideration were corrugated roofings-plastic sheets reinforeed with fibre glass. The contention that since the roofings were not made out of pure plastic but plastic reinforeed by fibre and, therefore, the roofing could not be termed as articles of plastics was rejected by the Court who held that merely because the plastic was reinforced by fibre glass, the roofing would not cease to be an article of plastic material. The more important question was whether having regard to the terminology employed in Item 15A(2) ("other rectangular or profile shape"), corrugated roofing would fall within Item 15A(2)-CET. The Court held that corrugated roofings would fall within this item. In the case before us it is not a question of a plastic sheet reinforced by some other material, but a case of two layers of plastic film with intervening layers, one adhesive and anti-halation layer and another a Photo-sensitive nylon resin layer. The present case is. therefore, on all fours with the case which was before the Bombay High Court.

In 1983 ECR 1168-D (CEGAT), the point before this Tribunal was whether plastic sacks known as high density polyethylene woven sacks, are classifiable under Item 15A(2) or under Item 68-CET. The woven sacks were made entirely of plastics. Here again, we do not see how this decision is relevant to the facts of the case before us.

11. In the light of the foregoing discussions, we hold that additional duty of Customs was leviable on the subject goods with reference to Item 68 and not Item 15A(2) of the CET. We allow the appeal and direct that the consequential relief shall be granted to the appellants by the concerned Customs authorities within 3 months from the date of communication of this order.


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