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Hirji Nensey and Co. Vs. Union of India (Uoi), Through the Assistant Collector of Customs and 3 ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 655 of 1981
Judge
Reported in1989(20)LC213(Bombay)
AppellantHirji Nensey and Co.
RespondentUnion of India (Uoi), Through the Assistant Collector of Customs and 3 ors.
DispositionPetition dismissed
Excerpt:
.....- the petitioners claim that they fail under item 84.40 of the first schedule to the customs tariff act, 1975. the customs authorities have assessed them under item 85.05. item 84.40 reads thus:.....are described in their invoices as eastman ultronic straight knife single speed industrial cloth cutting machines with motor incorporated. the petitioners claim that they fail under item 84.40 of the first schedule to the customs tariff act, 1975. the customs authorities have assessed them under item 85.05. item 84.40 reads thus:machinery for washing, cleaning, drying, bleaching, dyeing, dressing, finishing or coating textile yarns, fabrics, or made up textile articles (including laundry and dry cleaning machinery) fabric folding, reeling or cutting machines, machines of a kind used in the manufacture of linoleum or other floor-coverings for applying the paste to the base fabric or other support, machines of a type used for printing a repetitive design, repetitive words or overall.....
Judgment:

S.P. Bharucha, J.

1. This petition concerns the customs duty leviable on what are described in their invoices as Eastman Ultronic Straight Knife Single Speed Industrial Cloth Cutting machines with motor incorporated. The petitioners claim that they fail under item 84.40 of the First Schedule to the Customs Tariff Act, 1975. The Customs authorities have assessed them under item 85.05. Item 84.40 reads thus:

Machinery for washing, cleaning, drying, bleaching, dyeing, dressing, finishing or coating textile yarns, fabrics, or made up textile articles (including laundry and dry cleaning machinery) fabric folding, reeling or cutting machines, machines of a kind used in the manufacture of linoleum or other floor-coverings for applying the paste to the base fabric or other support, machines of a type used for printing a repetitive design, repetitive words or overall colour on textiles, leather, wall paper, wrapping paper, linoleum, other material and engraved or etched plates, blocks or rollers therefor:

(1) Not otherwise specified,

(2) Domestic Washing machines, laundry and dry cleaning machinery.

Item 85.05 reads thus :

Tools for working in hand with self-contained Electric Motor.

2. The petitioners imported from U.S.A. five of the said machines They were cleared upon making payment of customs duty under item 85 05 as demanded by the Customs authorities. Thereafter the petitioners made refund applications for an aggregate sum of Rs. 31,989/-. This was upon the basis that the said machines fell under item 84.40.

3. On 15th December 1977 the Assistant Collector of Customs rejected their applications. He noted that the petitioners had produced no catalogue or literature in support of their claim. However, on scrutiny of the documents produced and examination of similar goods supplied by the manufacturers, M/s. Eastman Export Corporation, he found that the said machines were cutters with a built-in electric motor designed for 'working in the hand' for cutting textiles in the ready-made clothing industry. They were, therefore, correctly covered by item 85.05.

4. The petitioners preferred an appeal which was rejected on 17th May 1978 by the Appellate Collector of Customs. The Appellate Collector noted from the manufacturer illustrated literature that had been placed before him that the said machines, bearing Model No. 625, were described specifically as intended for cutting plastic material. He quoted the letterpress under an illustration of that model. It was noteworthy, the Appellate Collector commented, that the manufacturer's literature about the relative model nowhere referred to its utility in cutting textiles. On this ground, therefore, the petitioners' case for classification of the said machines as cloth cutting machines under item 84.40 was without merit. The Appellate Collector further observed that the said machines were essentially in the nature of tools for cutting plastic, powered with an electric motor, the motor being part of the entire tool or appliance and not separately installed. Considering the fact that the said machines were basically in the nature of a cutting tool and utilised the power from a motor to provide the energy and force that would ordinarily be provided manually in their operation, their classification by the Customs authorities was proper. The Appellate Collector also pointed out that the said machines were of the kind meant for 'working in the hand' as the phrase was defined in the explanatory note to Heading 84.49 of the Brussels' Tariff Nomenclature. The manufacturer's literature showed them to be fitted with suitable handles wherewith they could be manoeuvred during operation.

5. The petitioners then preferred a revision application to the Government of India. An order thereon was passed on 2nd April 1980. The Government observed that the said machines were essentially in the nature of tools for cutting textiles, plastics, etc. They had a built-in electrical motor and were designed for working in the hand. In order to obviate the fatigue of taking their full weight, the said machines were supported on stands while being controlled and directed by hand. The electrical motors were a part of the said machines and were not separately installed. Reference to the explanatory notes of the Brussels' Tariff Nomenclature, heading 85.05, indicated that the said machines fell within the scope of that heading. Besides, that heading specifically included 'cutters for cutting textiles in the ready-made clothing industry'. The petitioners' plea that the said machines weighed around 30 lbs. and were not portable instruments ordinarily carried in band did not debar them from being classified under item 85.05 since the explanatory notes to the Brussels' Tariff Nomenclature, heading 85.05. stipulated that, in certain cases, to obviate the fatigue of taking their full weight, the tools covered thereunder may be temporarily supported on a stand or tripod or by lifting tackle or balance, while being controlled and directed by hand. For these reasons the revision application was rejected.

6. This petition challenges the orders in revision, in appeal and the original order.

7. The petition describes the said machines as Single Knife Slotted Automatic Smooth Cutting Machines weighing about 43 lbs. each and states that they are used in garment factories for cutting a large lot of clothes at one time. They are fixed on a wooden stand and are operated from there only.

8. Neither the machines nor any literature concerning them has been produced before me. As opposed to the terse description given in the petition there are the observations of the revisional authority and the Appellate and Additional Collectors. These establish that the said machines have a built-in electrical motor. They have handles for being worked by hand. To obviate the strain that would be caused by their weight they are fitted upon stands. The said machines, therefore, fall more aptly within the ambit of item 85.05 than of item 84.40.

9. The petition is dismissed with costs.


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