1.The appellants imported exposing glass cylinders or photoprint cylinders. They use them as components in contact type photo-copying machines manufactured by them. The Custom House assessed the cylinders under Heading 70.21 of the Customs Tariff Act, 1975 for basic customs duty and for countervailing duty under Item 23A(4) of the Central Excise Tariff. The appellants applied for refund of the countervailing duty on the ground that the goods were correctly classifiable under Heading 90.10 of the C.T.A. and by virtue of that classification they were fully exempt from countervailing duty under Notification No.362/76-Cus. dated 2-8-1976. Their claims have been rejected by both the lower authorities who have upheld the original classification under Heading 70.21. This, in short, is the point of dispute involved in these two appeals.
"90.10 Apparatus and equipment of a kind used in photographic or cinematographic laboratories, not falling within any other Heading in this Chapter, photo-copying apparatus (whether incorporating an optical system or of the contact type) and thermo-copying apparatus, screens for projectors." 3. During the hearing before us today, the appellants put forth the following arguments in support of their claims : - (1) The onus to prove classification of goods under a particular Tariff Heading is on the Department. Here, the Department has placed no material on record to show why Heading 90.10 is not the appropriate Heading. The Appellate Collector has recorded a finding that the subject cylinders are general purposes articles. But no evidence has been put forth in support of that finding. The cylinders were used solely as components of the photo-copying machine and they had no other use. Heading 90.10 of the C.T.A. was, therefore, more specific for them. In this connection, they cited portions of the catalogues of M/s. Corning and M/s. Schott Gerate, the two suppliers of the cylinders.
90. The corresponding Note l(d) to Chapter 90 retained articles of glass falling under Heading 70.21 within Chapter 90.
(3) Note 2 to Chapter 90 governed classification of parts and accessories of apparatus and instruments falling within Chapter 90.
As per sub-note (b) thereof, the subject cylinders fell in Heading 90.10 since Heading 90.29 was not applicable to them. The scheme of the CCCN, on which the CTA was based, was also similar.
(4) The recent Custom House practice was to classify these cylinders under Heading 90.10 as evident from the Bill of Entry No. 309 of February, 1984 relating to M/s. General Agencies, Madras (photocopy produced). The Collector (Appeals) too had passed an order on 22-2-1984 (Order No. C. 5/1596/1982) in the case of the appellants wherein he had classified similar glass cylinders under Heading 90.10 with benefit of exemption Notification No. 362/76-Cus., dated 2-8-1976.
The appellants also cited the order of this Bench relating to classification of glass windscreens passed in the case of M/s. Atul Glass Industries and stated that the ratio of that order should apply to their claims as well.
4. The Department's Representative stated that the nature of articles involved in the case of M/s. Atul Glass Industries was quite different and, therefore, no support could be drawn from the said order. He argued that the subject glass cylinders had no optical properties and that, in spite of their fineness and specific dimensions, they still remained an article of glass. In trade parlance, they were nothing but articles of glass as they were manufactured by M/s. Corning and M/s.
Schott Gerate who were manufacturers of various articles of glass as seen from their trade catalogues. The Department's Representative cited the orders of this Bench in the case of Flame-proof Well Glasses (1983 E.L.T. 384 CEGAT) and Gauge Glasses (1983 E.L.T. 1190 CEGAT) and stated that according to the ratio of these two orders the subject cylinders should rightly fall in Heading 70.21. The Bench put to him that while Note 1(c) to Chapter 84 of the C.T.A. excluded articles of glass falling in Heading Nos. 70.17/18, 70.20 or 70.21 from the scope of Chapter 84, the position was just the opposite in the case of articles of glass falling in Chapter 90. Here, as stated by the appellants, the Notes in Chapters 70 and 90 of the C.T.A. retained articles of glass falling in Chapter 90 within the scope of that Chapter. The Department's Representative only reiterated that the subject cylinders were articles of glass and, therefore, fell in Heading 70.21. When asked to comment on the recent Custom House practice and the order of the Collector (Appeals), he stated that he had no information as to why the Department's practice had been changed.
5. We have carefully considered the matter. The objection of the Department that the subject cylinders have no optical properties is not valid because, as evident from the wording of Heading 90.10, that Heading includes photo-copying machines of the contact type as well as those incorporating an optical system. Further, just because the suppliers of these cylinders manufacture other glass items also, it cannot be said that the subject cylinders are known in trade parlance as articles of glass and nothing more. We observe that classification under the Customs Tariff is not dependent on trade parlance when the parameters are precisely laid down in the Tariff itself- in the description of the Heading, Section Notes, Chapter Notes and Interpretative Rules -all of which have statutory force. So far as the nature and role of the subject cylinders is concerned, we find stated as under in the record :- "the actinic tube light is placed in the glass cylinder in a fixed position and the glass cylinder conveys the paper around the light source for Exposure".
Further, the trade catalogue and certificate of the two foreign suppliers explain the nature of these cylinders as under :- "Duran brand Photo Printing Cylinders are specially designed for use in ammonia printing machines. They are low expansion borosilicate glass tubes and have high thermal and chemical stability. The excellent optical transmission properties of this glass help in getting clear prints and high quality of reproductions." Corning brand Photo Printing Cylinders are specially designed for use in ammonia printing machines. They arc low expansion borosilicate glass tubes and have high thermal and chemical stability. The excellent optical transmission properties of this glass help in getting clear prints and high quality of reproductions." The above material on record amply proves that the subject cylinders are no glass cylinders of ordinary use but are specially designed parts of photo-copying machine and have a definite functional role to play in that machine. We, therefore, agree with the appellants that by virtue of the various Chapter Notes referred to by them, these cylinders which are solely used as a component of photo-copying machine correctly fall under Heading 90.10. We have noted the recent change in the Department's practice of classification as evidenced from the Bill of Entry of M/s. General Industries and the order dated 22-2-1984 of the Collector (Appeals) produced by the appellants. The analogies of articles of glass which are components of machinery etc. falling in Chapters 84 and 85 cited by the Department's Representative are misplaced for the simple reason that Notes governing the scope of these two Chapters are different. Accordingly, we set aside the impugned orders and allow both the appeals with consequential relief to the appellants.