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TMI Blog1994 (5) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... quently the benefit of Tariff Heading 84.66 on the ground that the film production unit of the respondents cannot be treated as an industrial plant inasmuch as an industrial plant envisages production of goods whereas no such production of goods takes place here. The activity of shooting of films cannot be considered as an industrial activity. The camera imported is in the nature of professional equipment. It is handy to move from place to place. This cannot be considered as an industrial plant contemplated under Heading 84.66. 1.3 On appeal before the lower appellate authority, the respondents herein succeeded. The said authority has come to a conclusion on the strength of evidence led by the respondents that film production unit of the respondents is considered as a factory ever since 1956; it had building and also equipments already installed for operation. It has also been stated that evidences have also been adduced that both the Government of India and the Government of Andhra Pradesh have recognised shooting of films and processing of films as a process of industrial activity. The said appellate authority has observed that it is also well-known that film industry is one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Tariff Heading 84.66. He relies on (1) 1985 (21) E.L.T. 873 - Paras 3 4 [Satish Kumar Goel v. C.C.] and (2) 1985 (22) E.L.T. 68 - Paras 7 8 [Sarswati Stores v. C.C.]. 5. We have carefully considered the pleas advanced on both sides. A film production unit is `Industrial Plant and produces films, a commodity tradable and marketable in the market. Therefore, there is no substance in the pleas for the Revenue that a film production unit does not produce any goods. It may be that at times the production unit is doing job work as well but this is so for all factories producing goods; they may be producing goods on their own account or on job work basis. There is no dispute in this case that the unit of the respondents is registered as a factory under the Factories Act. In that view, Sujatha International relied upon by the learned JDR is in favour of the respondents rather than the Revenue. In that case i.e. Sujatha International, benefit of Tariff Heading 84.66 was denied on the ground that till the time of importation of the goods the appellants unit was not registered as a factory. This is not so in the instant case on the undisputed facts. Accordingly, we dismiss the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.66. It is better to reproduce the Tariff Heading 84.66 itself as below : 84.66 All items of :(i) (a) 40% Machinery including prime movers, Instruments, apparatus and appliances Control gear and transmission equipment, 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 : Industrial plant Irrigation Project Power Project Mining Project Project for the exploration for oil or other minerals, and 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 Central Board of Excise and Customs may make under Section 157 of the Customs Act, 1962 (52 of 1962) and such contract or contracts has or h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods do not qualify for assessment under Heading 98.01". The larger Bench has clearly held in para 33 that the existence of a contract for the import of the consignments and the registration thereof in the Customs House prior to the clearance is SINE QUA NON for classification under Heading 98.01 CTA . . . . . . The larger Bench has followed the judgment of Bombay High Court in the case of Subhash Photographics v. Union of India - 1992 (62) E.L.T. 270 wherein it has ben held in para 14 : It has further been made clear that this Heading (98.01) would apply only to such goods which are imported in accordance with such regulations (Reference is to Project Import Regulations). In such a situation Heading 98.01 has to be read with Regulations framed under Section 157 of the Customs Act . 9. The above two judgments are clearly application to the facts of the case. In this present case, the importer has not registered the contract in Customs House prior to the importation and hence the benefit of the Heading 84.66 of Customs Tariff Act, 1975 cannot be extended to them. In the result, I order for allowing the appeal of the Revenue. Dated : 20-12-1993 Sd/- (S.L. Peeran) Memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Heading No. 84.66 of the Customs Tariff Act, 1975. The learned SDR also referred to the Tribunal s decision in the case of Sujatha International as a project import and could be covered under Heading 84.66. The Tribunal had observed in that decision that mere placement of order, its acceptance, letter of credit etc. did not amount to a contract, and did not entitle the importer to the benefit under Heading 84.66 of the Customs Tariff Act, 1975 and that the benefit under Heading No. 84.66 was not admissible to photo colour laboratories. 13. Shri Ashok Grover, the learned Advocate stated that their photographic establishment was a factory and an industry; the import was under OGL and that when the photographic establishment came into existence no benefit of project import had been availed of. The date of registration of project import was 28-6-1984 while the project import regulations were of a later date. In this connection, he referred to the Supreme Court s decision in the case of Subhash Photographics v. Union of India, 1993 (63) E.L.T. 3 (SC) = 1993 (2) SCALE 909 (Para 13). The goods have already been cleared after paying higher rate of duty. 14. In rejoinder, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the purchase order was filed for the purposes of assessment after the import. It was pleaded by the importer that the camera was meant for production of films and that their film studio is an industrial plant. The camera was imported by a running concern and obviously it was not for initial setting. It also appears that no item had earlier been imported under project import by the concern. By importing a single camera how the substantial expansion of the studio could be effected, has not been explained. Even if the production of films could be taken as an industrial activity and film studio could be considered as a factory, it has to be seen whether import of a camera without reference to any project could be considered as a project import and could be covered under Heading 84.66 of the Customs Tariff. As referred to above, the import of a single camera could not help in substantial expansion of the existing unit, even if film studio/laboratory is taken as an industrial unit. 18. The learned Member (Judicial) in his order has extracted tariff entry No. 84.66 and has come to a finding that the imported camera did not fall in any of the items described in that heading. He has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court. The learned Consultant for the appellants had argued that the Tribunal s decision in the case of Punjab State Electricity Board (1987 (27) E.L.T. 432 = 1987 (10) ECR 120) was in their favour. It should be noted that in that case the article imported, namely a vehicle for transporting 100 MVA transformers, was held as not qualfiying for assessment under Heading No. 84.66. It was held, firstly, that the vehicle was not auxiliary equipment within the meaning of the Heading; and secondly, that even if it was considered to be so, it was not relatable to any particular project and therefore, not eligible. Shri Kohli s argument is that in the present case the twin flo refiner was relatable to a particular project. This has not been denied, but that does not mean that the decision in the case of Punjab State Electricity Board gives any support to his case. Certainly, the Tribunal did not say in this case that anything which was relatable to a particular project would qualify for assessment under Heading No. 84.66." 20. Taking all the relevant considerations into account, I agree with the learned Member (Judicial) that the benefit of the Heading No. 84.66 of the Customs Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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