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TMI Blog1998 (3) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... rd together and are being disposed of by this common order. 2. In the appeal decided by the Collector, Customs (Appeals), New Delhi the goods were described by the importers in the B/E as Optional Time Domain Reflectometers . In another appeal in which the impugned order is by Collector, Customs (Appeals), Hyderabad, the goods were described as Automatic Test Equipment - Single Mode Reflectometer . On examination, the goods were found to be optical time domain reflectometer . 3. There is no dispute about classification. The respondents have claimed the benefit of Notification No. 96/91-Cus., dated 25-7-91 under serial No. 53 of the Table annexed to that notification which covers automatic testing or marking or printing or typing mac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs has not disputed the fact that the item OTDR is also covered by S. No. 53 of Notification No. 96/91, but the only ground on which this exemption was denied is that the Notification No. 96/91 is of generic in nature and the Notification No. 59/88 is specific in nature. Hence, the grounds in the present appeal is beyond the scope of the proceedings. Such a ground cannot be taken at this stage by the Department. 7. It was his submission that when two notifications are available to an assessee, it is the option of the assessee to choose any one which is beneficial to him. He referred to a number of decisions in this regard which are given in para 7 of the written submissions. 8. He also referred to the Supreme Court decision in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he description at Serial No. 53 of the Table under Notification No. 96/91-Cus., was general in nature and it could not be said that the goods were equally covered by both the Notification. When there is specific entry, it is the settled position in law that the goods would be classified under that specific entry as against the general entry. 10. The learned Advocate had submitted that the Asstt. Collector, Customs had not disputed that the item in question was covered by Serial No. 53 of Notification No. 96/91-Cus. We find that the Asstt. Collr., Customs had only referred that entry under Customs Notification No. 96/91-Cus. was generic in nature and covered broad category of goods of particular nature. We find that he had held that the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and observed that when there were two notifications which were in force simultaneously then that notification which was beneficial to the assessee should be applied. Para 12 from that decision is extracted below : 12. In this connection in the ruling of the Delhi High Court as given in Indian Aluminium Company Ltd. and Another v. Union of India as reported in 1983 (12) E.L.T. 349 (Del.), the observations made in para 14 are relevant :- The exemption clause appearing in taxation laws should be reasonably interpreted. It should be given its full and reasonable scope and amplitude so long as violence is not done to the language used. The exemption is from so much of the duty of excise leviable thereon as is in excess of 75% of such du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Bom.) at Para 27, which is reproduced below :- It is now well settled that where a taxing provision or an exemption provision is capable of more than one interpretation, then that interpretation must be put which would reduce the incidence of tax or enlarge the ambit of the exemption provision. Further it is held at Para 28 that :- If two interpretations of a provision are permissible and one interpretation may render the provision subject to serious constitutional challenge, the other interpretation ought to be preferred. In other words, the provision must be read down and given a restricted meaning to protect it from a legal challenge as to its vires or validity. 14. In the present cases, we find that the importers had desc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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