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TMI Blog1987 (7) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... 72(15) and it has been wrongly assessed and duty has been collected under item 72(b). Item 72(b) reads as follows:- "machinery, namely, such of the following articles are not otherwise specified - (a) .... (b) machines and sets of machines to be worked by electric, steam, water or other power, not being manual or animal labour, or which before being brought into use require to be fixed with reference to other moving parts;" The standard rate of duty was 40 per cent ad valorem under item 72(b); Item 72(15) reads as follows:- "Boot and show manufacturing machinery" The standard rate of duty was 10 per cent ad valorem under item 72(15). The appellants made this claim on 20-4-1971. In the meanwhile, the Government of India issued Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the machine which is designed for the manufacture of boots and shoes could also make chappals, it cannot be a ground for taking it out from item 72(15). In that view he allowed the appeal and ordered the refund. 2. Sometimes in 1973, the Government of India considered that this view of the Appellate authority requires reconsideration and accordingly initiated suo motu proceedings under Section 131(3) of the Customs Act, 1962. After issuing notice, the Government of India ultimately held that unless the machinery is 'exclusively useable only for making boot and shoe, it cannot be brought under item 72(15) and that shows 'boot' will not include 'chappals' and since the machinery can make chappals also it will fall only under Item 72(b). In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would cover only those machineries which are exclusively designed for the manufacture of boots and shoes. 3. We think that the learned Judge seems to have taken a different view from what he held on the earlier occasion when he remanded the matter. As already stated in W.P. 5714 of 1976 he proceeded in the view that the department should not be guided by the singular fact of capability of the machinery imported by petitioner producing chappals and in fact he held- "This reasoning i.e., the machinery is capable of making chappals and therefore, cannot fall under item 72(15) in my view is wholly unacceptable. Boot and shoe making machinery stated under item 72(15) is descriptive in nature. Merely because sandals or chappals are also capable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or leather alone, are covered by that entry. In fact, there is also a dispute as to whether this machinery can make chappals at all. The Appellate Collector rightly pointed out that the department had no material to show that the machinery can make chappals as well. Item 3 in the catalogue, which was relied on by the Department in this case, could not in our opinion be considered as a chappal. This is described by the learned Counsel as 'Punjabi chappals'. We are not quite sure what this 'Punjabi chappals' is. We find from the figure that the front portion of the foot is covered as in a shoe and the back portion also is covered with a bE.L.T. and, in between, the small portion does not have any top leather. Certainly, this cannot come unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion shall be preferred to Headings providing a more general description. (b) Mixtures and composite goods which consist of different materials or are made up of different components and which cannot be classified by reference to (a) shall be classified as if they consisted of the material or component which gives the goods their essential character, in so far as this criterion is applicable. (c) When goods cannot be classified by reference to (a) or (b), they shall be classified under the Heading which occurs latest among those which equally merit consideration." If we apply the first rule of interpretation, even it if comes under item 72(2), it will have to be assessed under item 72(15). Finally, though it may not be pertinent for the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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