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TMI Blog2000 (9) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants had imported the aforesaid goods from the U.S.A. The goods were assessed under Heading No. 90.10 of the First Schedule to the Customs Tariff Act 1975 (hereinafter referred to as "the Tariff"). The importers paid duty accordingly but, later on, filed a refund application claiming classification of the imported item under Heading No. 84.35 of the Tariff and consequential exemption under Notification No. 112/77-Cus dated 1-7-1977. The Assistant Collector rejected the refund claim. The appeal filed by the party against the Assistant Collector's order was rejected by the Collector (Appeals). Both the authorities found the goods to be appropriately classifiable under Heading No. 90.10 of the Tariff. Hence the present appeal by the assessee. 3.Appellants have made a request for decision on the merits of the appeal without personal hearing. 4.We have carefully examined the records and have heard ld. DR, Shri Ashok for the respondent. We have also heard ld. Advocates, S/Shri A.R. Madhav Rao and Shekhar Vyas as intervenors. 5.Ld. DR reiterated the observations and findings of the lower appellate authority. He sought to rule out Heading No. 84.35 by submitting that the "Master Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferring to the relevant Tariff entries and HSN notes, argued in favour of classifying the "Master Maker" of the present appellants under Heading 84.34 of the Tariff. 7. After careful consideration of the rival submissions, we have found that the key to resolution of the classification dispute lies in the Apex Court's judgments cited by ld. Advocate, Shri Madhav Rao. In the case of Delhi Press Samachar Patrika (supra), the imported item considered for classification was "automatic plate processor". The importers had claimed classification under Heading 84.34 of the Tariff whereas the assessing authority classified the item under Heading 90.10. The Collector (Appeals) sustained the assessee's claim. The Tribunal upheld the decision of the lower appellate authority. The Collector of Customs challenged the Tribunal's decision before the Supreme Court in appeal. The Apex Court dismissed the appeal of the Revenue. The ratio of the Apex Court's decision can be discerned from the following para :- The Tribunal has distinguished its earlier decisions upholding the classification of Automatic Plate Processor under Heading 90.10 on the ground that where the plate processor unit is combined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture and character of the goods as understood on the basis of scientific literature relating thereto. Supreme Court rejected this argument and, while dismissing the Revenue's appeals, observed as under :- The agreed report of the Team appointed by the Tribunal indicates clearly that these plates are meant for and are used for printing purposes. Whether we look at the end use or to the character and nature of the goods, they are in the main plates employed in the printing of newspaper/magazines. The Tribunal has opined; on the basis of the above material that Toyobo photo sensitive nylon printing plates are exclusively used in printing industry and are called Photographic Plates within the meaning of Chapter 37. They placed them under chapter heading 84.34. We are unable to say that the conclusion arrived at by the Tribunal is not correct. It may not also be entirely correct to say that in no case can the end use or function of the goods is relevant on the question of classification. A three Judge Bench of this Court has relied upon the function and end use also in determining the classification in Indian Tool Manufacturers v. Assistant Collector of Central Excise, Nasik & Ors. [19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducing images on a photo-sensitized surface, as a film, by the action of radiant energy, especially light. In this process, there is a negative print and a positive print. Reprography is a process of fascimile reproduction of graphic matter, involving its transmission by electro-static energy, especially wire or radio. Reprography has two aspects viz., Photocopy and thermocopy. Photocopying is a process of mere graphic reproduction by the action of light whereas thermocopying is a process of mere graphic representation by the action of light on an electrically charged photo-conductive insulating surface, in which a latent image is developed with a resinous powder. Appellants have submitted that, out of the two methods of preparing printing plates viz. (i) photo-type setting and composing and (ii) reprography, they adopted the latter. No principle of photography is involved in the latter method of reprography, unlike in the former. Appellants have further contended that the function and end-use of the machine should be the guiding factor for classification and that the item in question should be classified under Heading No.84.34 of the Tariff by virtue of its end-use in the printin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal explaining the process of preparing printing plates. According to that report, "Times of India" used photo-sensitive resin-coated paper for preparing printing plate. The matter printed on the photo-sensitive paper (otherwise called 'photographic paper') was pasted on a newspaper form according to the required layout. The pasted layout was converted into a film negative which would be in the form of a newspaper page. The film negative matter was then transferred to a photo-sensitive plate by exposures to ultraviolet radiation. The plate, so exposed/non-sensitized, was then subjected to chemical processing in "Nylo wash-out" unit, which resulted in physical image coming in the form of relief on the plate. The plate with the relief character thereon was then ready for being taken onto the printing machine for printing of the newspaper. [The Tribunal, on the basis of the report, reached a finding in the case of Kasturi & Sons that the printing plates used by them were intended for use exclusively in printing industry and held that the goods were classifiable under Heading 84.34. This decision was upheld by the Supreme Court in Kumudam Publications (supra)]. 15. The 'Mastermak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r decision rendered by a co-ordinate Bench of the court in Delhi Press Samachar Patrika (supra) would still hold the field. In our view, this decision of the Apex Court has laid down the criterion for deciding a classification dispute when it comes to Hdg. 84.34 v. Hdg. 90.10. The criterion is whether the photographic principle is involved in the working of the article or not. If such principle is involved, the article falls under 90.10 and, if not, it goes under 84.34. End-use considerations and trade parlance test are not the decisive factors in this context. Having regard to this position, we observe that the ratio of the decisions of the Tribunal in the cases of Kasturi & Sons, Anand Bazar Patrika and India Packaging Products (supra) is not correct. On the other hand the decisions in the cases of Thomson Press (supra), Printasia Corporation (supra) and Versa Publications (supra) have to be accepted as correct in the light of the Supreme Court's decision in Delhi Press Samachar Patrika (supra). 19.The 'Mastermaker' is classifiable under Heading No. 90.10 of the Tariff and not under Hdg. No. 84.34 as at the relevant time. The referred issue stands answered in these terms. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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