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TMI Blog2013 (5) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... ized machines having facility of accessing the bank account for dispensing cash and to carry out other financial and non-financial transactions as ATMs, irrespective of whether they do have the facility to accept cash/cheques deposit or not. Appellant has declared the impugned machine as ATM on the understanding as per Circular No. 41/2002 which clarified that “the office equipments referred to above are understood separately and have distinct functions. Cash dispensers are basically machines which can only dispense cash at the valid request of the customers of the bank while ATMs are more sophisticated machines which not only dispense cash but also perform other banking transactions like depositing cash, collecting cheques, bill payments, fund transfers, etc. - mere absence of one faction such as ‘deposit of cash/cheque’ would not be decisive to ascertain whether a machine is an ATM or a cash dispenser for the purpose of extending exemption. - Only to deny exemption under Notification which is available to ATM of Heading 8472.90, the HSN can’t be restrictively interpreted to construe that apart from the main function of dispersing cash, all the functions, as listed therein shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and denying the benefit of Notification No. 25/2005-Cus. The show cause notice was adjudicated and impugned order was passed. Aggrieved by the said order the appellant has challenged the same by way of this appeal along with an application for stay of the impugned demands. 3. Heard both sides. 4. Shri Prakash Shah, learned Advocate appearing for the appellant submitted that the show cause notice issued by the DRI is entirely without jurisdiction and, consequently, the impugned order is not sustainable. On merits, he submitted that the machine Procash 1500Xe is an ATM machine, as it is having the facility to perform other banking transactions like cash withdrawal, balance enquiry, cheque book request, statement request, pin change, fund transfer, mini statement, etc. The Procash 1500Xe is not only cash dispensers but an ATM having regard to its capabilities of other banking functions. He placed reliance on Board s Circular No. 41/2002-Cus., dated 11 July, 2002 which prescribes various functions of ATM machines. Therefore, it is the submission of the learned Counsel that they have rightly described the machines as ATM and claimed the benefit of exemption under Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, the impugned order is to be upheld. 6. Considered the submissions made by both sides in detail. 7. It is an admitted fact that the appellant has declared the impugned machine as ATM on the understanding as per Circular No. 41/2002 which clarified that the office equipments referred to above are understood separately and have distinct functions. Cash dispensers are basically machines which can only dispense cash at the valid request of the customers of the bank while ATMs are more sophisticated machines which not only dispense cash but also perform other banking transactions like depositing cash, collecting cheques, bill payments, fund transfers, etc. RBI on its Website in FAQs defines as under :- Q. 1. What is an Automated Teller Machine (ATM)? Ans. 1. Automated Teller Machine is a computerized machine that provides the customers of banks the facility of accessing their account for dispensing cash and to carry out other financial non-financial transactions without the need to actually visit their bank branch. Q. 3. What are the services/facilities available at ATMs? Ans. 3. In addition to cash dispensing ATMs may have many services/facilities enab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a plastic smart card with a chip, that contains a unique card number and some security information such as an expiration date or CVVC (CVV). Security is provided by the customer entering a personal identification number (PIN). Using an ATM, customers can access their bank accounts in order to make cash withdrawals (or credit card cash advances) and check their account balances. ATMs are known by various casual terms including automated banking machine, money machine, bank machine, cash machine, hole-in-the-wall, cash point or Bancomat (in Europe and Russia) 8.3 The definition of ATM as per Clause 3.3 of UL291 reads as under : An unattended machine that will dispense currency when operated as intended by an authorized customer and which will provide a limited degree of protection against unauthorized removal of currency. This product may also receive deposits. A. That the aforesaid definition defines ATM to mean a machine which dispenses cash. Further, it provides that the machine may also receive deposits. The use of words may make it optional and it will be treated as ATM even in the absence of facility to receive cash. B. It is amply clear from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as interpreted in the impugned order. An ambiguous Circular cannot take away the exemption confessed by Central Govt. upon all ATMs by creating unintended differential which is not even recognized by RBI, the statutory governing body for the ATMs as well as the banking in general. 8.9 Only to deny exemption under Notification which is available to ATM of Heading 8472.90, the HSN can t be restrictively interpreted to construe that apart from the main function of dispersing cash, all the functions, as listed therein shall also necessarily be present simultaneously to construe a machine as an ATM. 8.10 In the case of NCR Corporation (India) Pvt. Ltd. (supra), neither the cogent material which include explanation by RBI regarding meaning of ATM, Master Circular issued by RBI, meaning of ATM from Dictionary of Banking. Meaning given in Wikipedia or in UL291 which is a standard of safety for ATM developed by the Underwriter Laboratories Inc. (UL) nor the judgments of the Hon ble Apex Court referred hereinabove were available for consideration of the Tribunal. In that case, the facts do not describe that the machine P77 is having other functions apart from cash/cheques deposits lik ..... X X X X Extracts X X X X X X X X Extracts X X X X
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