JUDGMENT
S.L. Peeran
1. Both these appeals filed by the party and the Revenue arise from a common impugned order in Appeal No. M.CUS.500/94 Dated 30.6.94 passed by the Commissioner (Appeals) by which he has rejected the claim of the assessee for classification of the imported item under sub-heading 8479.89 in terms of Serial No. 50 of the Table to the Notification No. 59/87 as claimed by the importer-assessee. However the classification of the item under sub-heading 8520.90 was accepted and as a consequence the benefit of Notification No. 59/88 in terms of Sl. No. 5 of the heading (viii) i.e. Heavy Duty Tape Recorder under the board heading Sound Broadcast Equipment was granted.
2. The Revenue is aggrieved with regard to the grant of the benefit of this Notification on the plea that the item is not Sound Broadcast Equipment and is not heavy duty Tape Recorder and hence the benefit ought not have been granted to the importer. While the assessee has claimed the benefit of classification under sub-heading 8479.89 as machine having individual function and the benefit of Sl No. 50 of the table annexed to the Notification No. 59/87. The Collector (Appeals) while arriving at the conclusion held that the item is Sound Recording Magnetic Tape Recording apparatus whether or not was not incorporating a sound recording deice cassette for re-producing for classification under heading 8520.20 and had relied upon the Explanatory Note to HSN appearing at Page No. 1368 which notes that sound recording machine which means apparatus which on receiving suitable audio frequency vibration generated by a sound waves was converted into recording medium so as to enable it to be used subsequently to reproduce the original sound wave. Noting the technical literature, he noted that the classification adopted by the lower authority under heading 85.20 is correct and is required to be confirmed. He also noted that the claim for classification under sub-heading 8479.89 cannot be accepted for reason that the heading is residuary for classification as machine having individual functions and that it cannot be classified under any other heading of the tariff. However, he noted that the classification under 85.20 has to be accepted and the claim to the benefit of Notification No. 59/88 dated 1.3.88 vide Serial No. viii serial No. 5 viz. for Heavy duty Tape recorders, should be accepted in the light of the manufacturer’s literature which states that the item is designed to produce two cassette copies or four cassette copies as the case may be from a single cassette master. He has also noted that the item is also designed to produce salves and the production capacity can be expanded further. It is a new generation high speed tape recorder-cum-duplicator. In other words, it is a new generation machine with a technological improvement in magnetic recording system. This Tape recorder is designed to withstand hard use and to run continuously for hours together to carry on functions such as recording, re-recording and duplicating with utmost speed, accuracy highest quality efficiency and reliability. In this view of the matter, he has held the item to be Heavy duty tape recorder. This finding is challenged by the Revenue on the ground the order is not legal and proper as there is no evidence produced by the importer that the item is heavy duty recorder and further the benefit of Notification has to be granted only if the item falls under heading sl No. viii and no evidence has been produced to show that item falls under this sub-heading of the Notification.
3. Arguing for the importer (Appellant in Appeal No. C/984/98(94), Shri A.K. Jayaraj, learned Counsel relied upon the manufacturer’s catalogue which gives the description of the item. He also produced specification of the another Tape recorder. Therefore, he submits that the conclusion arrived at by the Collector (Appeals) on the basis of comparison of these literature that the item imported is heavy duty tape recorder cannot be disregarded. He also relied upon the grounds of appeal for their claim for classification under 8479.89 as machine having individual functions. To a query from the Bench as to the findings given by the Collector (Appeals) that the item is a Magnetic Tape Recorder and his reliance on HSN Note, he initially opposed to the rejection under heading 8479.89 but submitted that they have evidence to show that their claim for classification under heading 84.79 is justified. But however, he submits that the grant of benefit of Notification No. 59/88 in terms of classification adopted by the lower original authority should be sustained. On a further query from the Bench as to whether there is any marked difference between the Heavy duty Tape recorder and the light one, the learned Counsel submitted that except the manufacturer’s specification, there is no difference in the technical literature. He submits that even the Revenue has not done so except in the grounds of appeal. However, for that reason, he submits that the subsequent reliance by the Collector is sufficient to uphold the claim seeking for dismissal of the Revenue appeal and allowing the party’s appeal.
4. The learned SDR submits that the Notification specifies the terms for granting the benefit and the burden is on the importer to discharge that the item fall under the Serial number as sought for by them by producing the technical literature and the trade under standing as to how the product is marketed. In the absence of the production of evidence by the importer that the item is Heavy Duty Tape recorder, their claim for benefit cannot be accepted and he sought for allowing the plea of the Revenue and rejection of the party’s appeal as the item is classifiable heading 8520.90 as adopted by the both the authorities below.
5. On consideration of the submissions made and on perusal of the entire evidence and in view of the findings recorded by the authorities we notice that the lower authorities have chosen the heading which is most appropriate to the item, that the item cannot fall under the subsidiary heading in terms of the technical literature as the item is a magnetic tape recorder and it has been rightly classified under heading 8520.90 taking into account the HSN note at page 1368. Therefore, in the light of the technical literature pertaining to the product, there is no infirmity in the classification adopted by the lower authorities. In this view of the matter, the importer’s claim for classification under subsidiary heading 8479.90 cannot be accepted and as a consequence, the benefit of Notification under that heading cannot granted as held by the authorities. Therefore, the importer’s appeal No. C/984/94 is rejected.
6. In so far as the Revenue appeal is concerned, we notice that the burden to prove the claim for the benefit of the Notification is on the importer. Although the Commissioner has examined the technical literature, but the said literature does not give specification for heavy duty Tape recorder vis-a-vis the light duty Tape recorder. Even the technical literature does not specify that the same can be used for sound recording under which heading the item has been listed. The importer has also not produced any evidence of trade understanding. The Revenue has also not produced any technical literature to show that the item is heavy duty tape recorder and can be utilized as Sound Broadcast equipment in terms of Notification. The matter was heard on earlier occasion and an opportunity was granted to the importer. However, as the Collector (Appeals) has come to the conclusion on his own and hence that portion of the order is required to be set aside. In the interest of justice, the matter is remanded to the original authority to give an opportunity to the importer to produce the technical literature, evidence of trade understanding with regard to the product in question, that it satisfies the terms of the Notification No. 59/88 and dated 1.3.88 and that the item imported is also a sound broadcast equipment. Thus the party’s appeal is rejected and the Revenue appeal is remanded to the original authority for de novo for the reasons stated above.
(Dictated and pronounced in open Court)
