ORDER
M. Santhanam, Member (J)
1. The department has filed this appeal against the order of the Collector of Central Excise (Appeals) Bombay dated 28.1.1983. The respondents have cleared Patch Prints of 35mm Black & White of exposed Cinematograph films falling under T.I37 of C.E.T. The clearance was without payment of duty on the ground that they were complete pictures and were duty free.
2. A show cause notice was issued on 7.11.87 demanding a duty of Rs.2528/- on the ground that Patch Prints will fall under T.I.37(11). The respondents contended that since the films were duty free, Patch Prints could also be cleared duty free. The Asstt. Collector held that the Patch Prints would not be called complete feature film and that duty was recoverable at tariff rate.
3. On appeal, the Collector (Appeals) was of the view that to his understanding Notification 112/75 dt. 30.4.75 as amended by Notiication 129/76 dated 273.76 would be relevant to the issue and passed an order that in case these Patch Prints had been cleared after 12 months from the date of Certification of the Central Board of Censors, the respondents should be entitled to exemption and had they not cleared within 12 months, the duty as demanded would be payable.
4. In the grounds of appeal it is urged that Patch Prints would not be eligible for the concession rate of duty as envisaged in the Notification 112/75.
5. The respondents did not appear but have submitted written arguments urging that the Patch Prints were cleared several years after the date of Censors Certificate.
6. Sh. H.L. Verma, SDR, urged that the order-in-appeal could not be supported because the notification referred to only films made in Black & White other than advertisement shots. Since Patch Prints would not come within the description, the benefit of notification would not be available.
7. There is no dispute that Patch Prints are classifiable under T J. 37(II)(2). The respondents have not claimed the benefit of any notification in their reply to the show cause notice. In the order-in-original, the Asstt. Collector rightly held that Patch Prints would not be considered as feature film and will attract duty under TI 37(II) as films not otherwise specified. It is also specifically stated that no notification had been issued by the Govt. of India for concession to such prints. The respondents in their appeal before the Collector (Appeals) mainly raised two contentions i.e.(1) The order made by Asstt. Collector of Central Excise is misconceived. (2) Unless duty was levied against the Black & White Prints, Patch Prints would not be liable for duty. They never claimed the benefit of Notification 112/75 at all. While so, there is considerable force in the contention of the SDR that the benefit of Notification 112/75 would not be applicable to the present case. Even otherwise, the Collector (Appeals) has extracted the notification in question. It applies only to films made in Black & White other than advertisement shots. It is significant to note that Patch Prints have not been specified in the notification. The Patch Print is a replacement of fragment of a complete feature film. It cannot be said to be a feature film. The duty liability would, therefore, arise under Tariff Item 37(II)(2)-CET. We do not accept the findings of the Collector (Appeals).
The appeal is, therefore, allowed.