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TMI Blog1993 (5) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... ng individual functions, not specified or included elsewhere in this Chapter. 8479.89 Others." 2. The machine in question is a Criss-Cross Winding Automatic Machine imported by the petitioners from Germany. The machine was initially classified in the Bills of Entry under Sub-heading 8479.89. At the instance of the petitioners the Customs Authorities reassessed the Bills of Entry after classifying the machine under sub-heading 8445.40. 3. On 4th June, 1992 the Customs Authorities cancelled the reassessment order and again classified the machine under sub-heading No. 8479.89. 4. On 26th June, 1992 the Customs Authorities wrote to the Additional Industrial Advisor, Directorate General of Technical Development (DGTD), stating that a dispute had arisen whether the machine was a textile machine used in the textile industry. The DGTD's opinion was solicited in the matter. The DGTD wrote back stating that - "2. The proforma invoice specifically states that 'the precision cross winding machine model DS 28 (for cheese winding machine) with 8 winding heads arranged in 2 decks' imported by the said firm is specifically intended to wind polypropylene tapes 2.5 to 3.5 mm wide and 0.05 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 84.45 has been used in a descriptive sense and does not mean actual use. In other words, a textile winding machine would remain as such irrespective of the actual use to which it may be put. When the Central Government has thought it fit to take into consideration the actual end-use it has specifically said so in notifications issued by it. For example, by Notification No. 314/85-Cus., dated 11-8-1985 (as amended), exemption has been granted to moulds and dies falling within Chapter 84 of the First Schedule to the Act subject to the condition that it is proved to the satisfaction of the Assistant Collector of Customs that the said moulds or dies have been imported for the manufacture of artificial plastic articles. Notification No. 159/86-Cus., dated 1-3-1986 as amended, grants exemption to specified machineries, equipments for registered exporters of Gems and Jewelleries provided that the importer furnishes an undertaking to the effect that the imported goods would be used for the purposes specified. Similarly, Notification No. 349/86-Cus., dated 16-6- 1986 (as corrected and amended) relates to the grant of exemption to specified parts falling within Chapter 84 or 85 for the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.T. 343], Lakshmi Card Clothing Manufacturing Co. Pvt. Ltd. v. Collector of Customs, Madras [1984 (18) E.L.T. 569] and National Insulated Cable Co. v. Collector of Central Excise [1989 (42) E.L.T. 109]. 11. The DGTD had also noted that a machine such as the one imported by the petitioners is generally used in textile industries for winding of yarns. That being the case, the fact that the machine may be used for processes other than for winding yarns would nevertheless, not detract from its being a textile winding machine. The end-use being immaterial no significance can attach to the fact that the petitioners had not stated what business was being carried on by them, nor the purpose of tile import nor was the petitioner called upon to disclose the order placed by it on the foreign supplier for the machine. 12. The respondents having relied upon the opinion of the DGTD cannot be discarded. 13. The contention of the respondents is that the brochure issued by the manufacturer stated that the machine was in fact:- "manufactured for the continuous winding of flat, fibrillated or spliced foil tape, flat or round monofilaments of polypropylene, polyethylene, polyamide or polye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ariff items, resort cannot be had to the residuary item." [Emphasis added] 18. This statement of the law was accepted and followed by the Supreme Court in the case of Indian Metals and Ferro Alloys Ltd. v. Collector of Central Excise J.T. [1990 (4) SC 763 = 1991 (51) E.L.T. 165 (S.C.) the Supreme Court said: "If an article is classifiable under a specific item, it would be against the very principle of classification to deny the proper parentage and consign it to the residuary item." 19. Applying this test, it cannot be said that the machine in question could not be conceivably classified under Tariff Heading 8445.40. Indeed the conclusion that the machine is so classifiable does not require any such extreme test and the machine comfortably fits within the four corners of the Tariff Heading 8445.40. 20. In the facts of this case it must be held that the construction adopted by the respondent authorities in making the classification under Tariff Heading 8479.89 was perverse. The construction adopted by the respondent authorities on Tariff Entry 8445.40 is not one which it could reasonably bear. The decision in Collector of Customs, Madras v. K. Setty (supra) relied upon by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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