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R.i.S. Engineering Co. Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1985)LC490Tri(Delhi)
AppellantR.i.S. Engineering Co.
RespondentCollector of Central Excise
Excerpt:
.....oxford dictionary the word "photo" inter alia means "light", ''photo copier" means "machine for photocopying documents". the word' photography' means 'a picture taken by means of chemical action of light or other radiation on sensitive film'. the function of the appellants' machine would appear exactly to be this. it takes picture of drawings on tracing paper on sensitised ammonia paper.the appellants has argued that the test for judging whether appellant's product is a photo copying machine should not be dictionary meaning but the meaning in popular sense. for the purpose he has relied on ramavatar v. asstt. sales tax officer-air 1961 sc 1325-union of india and ors. v. tata iron & steel co.-air 1975 sc 769; s. zoraster & co. v.union of india and ors.-air 1976 rajasthan 190;.....
Judgment:
1. The question for decision in this appeal, originally filed a revision application to Government of India is classification for the purpose of excise of Ammonia Printing and Developing machine manufactured by the appellants-whether they are classifiable as office machines and apparatus under tariff item 33D of the CET and whether they are assessable under any of the items of the schedule to Notification No. 51/70-CE dated 1-3-1970.

2. Item 33D in CET was added for the first time w.e.f. 1-3-1970 whereby office machines and apparatus became excisable to excise duty on prescribed rate of ad valor am. By Notification No. 51/70, the Central Government exempted office machines and apparatus falling under item 33D, other than those specified in the sehedule annexed thereto from whole of the duty of excise leviable thereon. The schedule contains in all 30 specific items of which are item No. 13 is' reproducing machine' and item 28'photo copying machine'. It appears that officers of Central Excise department in March, 1970 inspected the appellants' factory and show cause notice dated 19-5-1970 was issued to the appellants to show cause why their product be not hold excisable. After following the usual procedure the Asstt. Collector of Central Excise, Bombay by his order dated 31-7-1970 upheld the show cause notice. The order was upheld in appeal by order dated 9-1-1975 passed by the Collector of Central Excise, Bombay but the same was set aside by Government of India by their order dated 13-1-1977 and the matter was remanded for de novo decision to the Appellate Collector, Central Excise, Bombay. The Appellate Collector Central Excise, Bombay by his order dated 19-8-1977 held that appellant's products fall under Tariff Item 33D and Item 28--'photo copying machine' of Notification No. 51/70. With those findings, he rejected the appeal. Aggrieved with this order the appellants filed revision application to Government of India again which is the present appeal before us.

3. At the hearing of the appeal Shri R.I. Sethna, Prop. of the appellants appeared in person. Shri S.N. Khanna, JDR represented the respondent. Though a number of grounds were raised in the grounds of appeal (revision), Shri Sethna mainly urged that the Ammonia Printing and Developing Machine manufactured by the appellants were not office machine and apparatus falling under tariff Item 33D but were machines used in Drawing Offices. He also urged that the import licence in respect of the component parts granted for their product describe 'end product-industrial machinery'. In support of this argument of Import Licence dated 6-10-1975 was filed in this case. He also urged that the appellants product was neither a reporducing machine nor photo-copying machine within items 13 and 28 of Notification No. 51/70-CE, dated 1-3-1970 as subsequently amended. They were therefore, exempted from whole of the duty of excise. It was further urged that reproducing machines are computer based machine and clearly appellants product was not such a machine. It was further urged that the order of the Appellate Collector was illegal as the decision was not his own but was based on Board's circular No. I/Office Machine and Apparatus/70 containing instruction No. 7 (MP)/ Office-Machine and Apparatus (1)/71 dated 23-1-1971. The Appellate Collector had thus abdicated his quasi-judicial function in favour of the Board. The appellants also filed technical literature about the appellants' product contained in its catalogue.

4. On behalf of the respondent, Shri V. Laksbmikumaran, submitted that the appellants product was nothing but office machine. The words 'reproducing machine and photo-copying machine' used in item 13 and 28 of the notification were used in a generic sense. It was not necessary that each and every type of machine should have been mentioned in the notification. He further submitted that the order passed by the Appellate Collector was that of his own and it cannot be said that Collector's decision is based on the circular referred to by the Appellants. On this ground he prayed for dismissal of the appeal.

5. We have carefully considered the arguments advanced by the parties.

We are not impressed by the appellants' arguments that merely because the product is used for Drawing Office, architects office or industrial houses for developing blue prints, it ceases to be office machine and apparatus. Drawing office, office part of an industry, or an architects office all remain offices. On the appellants arguments, the machine we do not think, ceased to be office machine or apparatus.

The Asstt. Collector held the appellants product excisable under Tariff item 33D holding that they were correctly classifiable as reproducing machine. The Appellate Collector, however, while holding the classification under tariff item 33D held the same to be photo copying machine. We do not therefore enter into the question whether the appellants product is a reproducing machine and will limit ours to the question whether it is a photo copying machine. It is to be remembered that according to the technical literature supplied by the appellants, it does printing of material drawn on tracing paper on ammonia sensitised paper which is subsequently developed in Ammonia liquid.

According to the Concise Oxford Dictionary the word "photo" inter alia means "light", ''photo copier" means "machine for photocopying documents". The word' photography' means 'a picture taken by means of chemical action of light or other radiation on sensitive film'. The function of the appellants' machine would appear exactly to be this. It takes picture of drawings on tracing paper on sensitised ammonia paper.

The appellants has argued that the test for judging whether appellant's product is a photo copying machine should not be dictionary meaning but the meaning in popular sense. For the purpose he has relied on Ramavatar v. Asstt. Sales Tax Officer-AIR 1961 SC 1325-Union of India and Ors. v. Tata Iron & Steel Co.-AIR 1975 SC 769; S. Zoraster & Co. v.Union of India and Ors.-AIR 1976 Rajasthan 190; Ganesh Trading Co. v.State of Haryana and Ors.-AIR 1974 SC 1362 and State of Gujarat v.Umedram Lallubhai-1965 STC 1059.

While dictionary meaning of a term used in fiscal legislation may not be relevant, it is well to remember that appellant himself filed before us a copy of instruction No. 7 issued by Central Excise Collectorate Bombay, which contains an opinion expressed by Directorate General of Technical Development. According to this opinion Ammonia Printing and Developing Machine would be appropriately classifiable as photo copy machine under the notification. This we think is sufficient evidence of how the appellants' product is understood in common parlance by those who have to deal with the machine. We believe that Directorate General of Technical Development keep abreast of all relevant information like common parlance and trade understanding on the subject. In any case when the appellant has himself filed this document, he cannot escape from so much of it as goes against him.

As to appellants' argument that Appellate Collector is quasi-judicial authority and should not have abdicated his judicial decision to the Board's circular contained in the instruction, it is sufficient to say that the order of the Appellate Collector does not make any mention of this circular and is based on the arguments advanced and the material placed before him. On this ground the order cannot be assailed. The ruling on the point relied on by appellant need not therefore be discussed.

The appellants also relied on an advertisement of Controllerate of Procurement, Naval Store Depot, Sewri contained in Indian Trade Journal dated 18-1-1984 wherein tenders are specifically invited for the Ammonia Printing Machines. He, therefore, argued that in the trade the machine is known as Ammonia Printing Machine and not as reproducing or photo copying machine or office machine. We do not accept this argument. There may be several types of reproducing machines and photo copying machines and it would not be possible to list all these in the notification or tariff item. In view of the foregoing we are satisfied that the appellants product is nothing but a photo copying machine. The Appellate Collector's order therefore. calls for no interference. The appeal is accordingly dismissed.


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