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TMI Blog1993 (11) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... d the business activities by indigenisation inasmuch as they had already purchased the developing and processing equipments in India, which were manufactured here and since the colour roll printer of the model is not manufactured in India, they had imported it from Japan. The Ld. Collector further held that the importer purchased the item from abroad as it had got a high speed of printing. He also held that the importer had fulfilled all the conditions of the project import and hence the item required to be assessed under project import under Tariff Heading 84.66 of Customs Tariff Act, 1975. The revenue in this appeal contend that only complete Mini Laboratory system which comprises of processing, developing and printing systems alone is eligible for concessional assessment under Heading 84.66 of Customs Tariff Act, 1975. It is further contended that the benefit could be extended to a unit importing the lab. as a complete unit as printer alone cannot add to the output and it is the developer which determines the output. Therefore, the imported item by itself cannot add to its existing capacity unless a complete unit of Mini Laboratory system by itself is imported, which does proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bench did not address itself with regard to other conditions of the project import i.e. with regard to registration tinder the Factories Act. The Tribunal has gone into this question in the rulings rendered in Uma Arts Studio (supra) in para 6 at pages 117 118 of E.L.T. which is reproduced herein below: * * * * The matter was again examined in the case of Sujatha International (supra). The findings given in paras 9 to 14 are reproduced herein below: * * * * Although, we are in agreement with the Collector s finding, in the light of the ruling rendered by Calcutta High Court in the case of Asiatic Oxygen Ltd. (supra) but still the other conditions of the project import are required to be fulfilled by the importer. There is no finding recorded by both the authorities. Therefore, the matter requires reconsideration and hence the appeal is allowed by remand to original authority to dispose of the matter in the light of the rulings noted above, after giving due opportunity of hearing to the importer and also to place any evidence which they may choose to produce at the time of hearing. Ordered a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id unit qualifies as a factory within the meaning of the Factories Act, For this purpose, I reproduce below Tariff Entry 84.66-: Heading No. Description of the goods (I) (2) (i) All items of: (a) Machinery including prime movers, (b) Instruments, apparatus and appliances, (c) Control gear and transmission equipment, (d) Auxiliary equipment, as well as all components (whether finished or not) or raw materials for the manufacture of the aforesaid items and their components required for the initial setting up of a unit, or the substantial expansion of an existing unit, of a specified : (1) industrial plant, (2) irrigation project, (3) power project, (4) mining project, (5) project for the exploration for oil or other minerals, and (6) such other projects as the Central Government may, having regard to the economic development of the country, notify in the official Gazette in this behalf: Provided these are imported (whether in one or in more than one consignment) against one or more specific contracts, which have been registered with the appropriate Custom House in the manner prescribed by Regulations which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Systems Data Control P. Ltd. - 1993 (63) E.L.T. 275 (Tri.) = 1993 (44) ECR 321 (Tribunal). (ii) DPS India Pvt. Ltd. v. Collector of Customs, Calcutta - 1992 (62) E.L.T. 837 (Tri.) = 1993 (45) ECR 120 (Tribunal). which are not dependent upon fulfilment of the aforesaid two conditions. In fact, such a question was never raised therein even though both the cases relate to Servicing Industries. 12. Apart from the foregoing, I also observe that no such ground has been taken by the appellant-Collector in his appeal memo. Only two grounds have been taken which are as follows:- (i) Only the complete mini lab systems which comprise of processing, developing and printing systems, is eligible for concessional assessment under Tariff Heading 84.66. This is the same ground on which respondent s claim was rejected by the original authority. (This ground has been rejected by both of us). (ii) Developing and printing of photofilms is in the nature of a service industry. This ground in my view has been taken in a half-hearted manner by the Collector when in the subsequent sentence he states :- No doubt it does bring into existence a commodity called a photograph in the place of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratio of these two decisions is that the Unit seeking the benefit of Project Import should have been registered as a factory under the Factories Act which condition according to the learned SDR has not been fulfilled. 19. Shri N.C. Sogani, learned Consultant has argued that the Heading 84.66 did not require that the unit should be registered as a factory under the Factories Act. He cited the decision of the Calcutta High Court in the case of Asiatic Oxygen Ltd. v. A.C. Customs - reported at 1992 (57) E.L.T., 563 (Cal.) and the case of Sh. Satish Kumar Goyal v. Collector of Customs - reported at 1985 (21) E.L.T. 873. 20. The ratio of the first decision (supra) cited by the learned Consultant is that the imports under the Project Import could be made in phases. The ratio of the second decision is that the equipment imported for automatic Colour Film Process Laboratory was entitled to the concession under Heading 84.66, ibid. 21. Learned Member (J) while agreeing prima facie with the conclusion of the Collector (Appeals) in the light of the Calcutta High Court decision in the case of Asiatic Oxygen Ltd. (supra) has held that there was no finding regarding the satisfaction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or not, and the Film Processing Lab. will be an industrial plant. 27. However it was argued by the learned SDR that though 84.66 by itself does not lay down the condition that the unit should be a factory as per Factories Act, the condition has been upheld by the Madras High Court in the case of Dass Labs and that this interpretation was binding on the Tribunal. 28. Other judgments relied upon by learned Member (T) have not dealt with this aspect at all but have only held that Service industries are also. Industries entitled to Project Import benefit. 29. There is prima facie some divergence between the Madras High Court decision in the case of Dass Labs and subsequent decisions relied upon by the learned Member (T). However, no subsequent judgment of the Tribunal does and, in fact, could not have negatived the Madras High Court decision in Dass Labs case, in the absence of contrary decision of any other High Court. 30. Following the said decision of Madras High Court in the case of Dass Labs, which has interpreted the scope of Heading 84.66, I agree with learned Member (J) that the matter has to be remanded to the Adjudicating Authority to decide the fulfilment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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