ORDER
1. This matter, originally a revision application against the Order-in-Appeal passed by the Appellate Collector of Customs, Bombay, on being transferred to the Appellate Tribunal has been taken up as an appeal for consideration.
2. The brief facts of the case are as under :
3. The appellants M/s. Jyoti Limited had preferred a claim for refund of duty on the ground that the goods in question viz. High Speed Camera – Dynafax Framing Camera with all accessories would fall under Heading 90.08 of the Customs Tariff Act @ 40% + 5% instead of at 100% + 20% under Heading 90.07 of the Customs Tariff Act. The Assistant Collector of Customs, Air Cargo, Colaba, Bombay, on the basis of the scrutiny of various documents produced, came to the conclusion that the said Dynafax High Speed Camera is correctly classified under CTA 90.07 and not under 90.08. Hence, the refund claim was rejected as being not admissible.
4. Being aggrieved by the aforesaid order of the Assistant Collector, the Appellants preferred an appeal to the Appellate Collector of Customs, Bombay seeking re-assessment of “High Speed Camera – Dynafax Framing Camera” under Heading 90.08 of the CTA. The Appellate Collector in the light of the facts and records pertaining to the case and after taking into account the submissions made on behalf of the appellants, came to the conclusion that the item in question would not merit assessment under Heading 90.08 of the CTA. The reason adopted by the Appellate Collector in arriving at the said conclusion was on the following lines. Though from the documents produced it appeared to the appellate Collector that the functioning of the Dynafax-350 Camera was similar to the cinematographic camera, nevertheless two factors compelled him to come to the conclusion that the item would not merit assessment under the Heading 90.08 of the CTA as claimed by the appellant. The first factor which weighed with the Appellate Collector was the relatively short length of the film being handled by the Dynafax Camera. Secondly, constructional features of the Camera, according to him, would not lend the same to be adapted as a cinematographic camera. This, in the opinion of the Appellate Collector was borne out from the range of the applications spelled out in the catalogue, including application for ballistics, detonations, gas combustions etc. Though high recording rates were involved, nowhere the catalogue mentioned its use as for cinematographic purposes. Since the Heading 90.08 of the CTA was restricted to cinematographic camera only, he rejected the appeal.
5. In the appeal, the appellants have contested the logic of the reasoning given by the Appellate Collector in negativing their claim for re-assessment under the Heading 90.08 of CTA.
6. Shri Hathi, learned counsel for the appellant argued at great length on the various constructional and functional aspects of the Dynafax High Speed Camera and in doing so he relied upon the catalogues, extracts from which had been made available to the Tribunal. The learned counsel for the apeliant took us through the various diagrams and charts by drawing pointed attention to some of the important features which would undoubtedly establish the item in question as cinematographic camera. In the course of his arguments, the counsel stated that though the basic elements of a cine camera and those of a still camera are similar, yet in cinematograph the object is to produce a moving picture of the whole event. An important part of the cinematographic camera is the film transport system. In addition to the film transport system in cine camera, there is a lens, film gate etc. So far as recording cameras are concerned, it was submitted that generally they do not have any shutter, the film moving continuously behind the lens. The learned counsel also explained the operation of the Dynafax High Speed Framing Camera with reference to the various parts such as Scrapping shutter, Rotating mirror etc. In other words, the main thrust of the arguments of the learned counsel for the appellant was that that camera is capable of recording events, objects having speed of 10 to 200 metres per second. It is used for analysing rapid events which can be accomplished with high Speed Cinematographic camera which a photographic camera cannot achieve. In support of this the learned Counsel drew attention to the Technical Note on the concepts of cinematography and the main usage of cinematographic cameras which are of special types of photographic cameras which can take a series of pictures in rapid succession. The essential difference between photographic and cinematographic camera is functional and not constructional. In short, a camera cannot be disqualified, according to the learned counsel on the basis of the Technical note furnished by him, from being classified as cinematographic camera if it employs different means to achieve the same function. In the light of the arguments advanced, the learned counsel sought to establish that the Appellate Collector has without any justification based his decision to disqualify the claim of the appellants merely on the basis of the relatively short length of the film handled by the Dynafax Camera and the constructional features. When the Appellate Collector could realise that the functioning of the Dynafax-350 camera is similar to the cinematographic camera he need not have allowed his decision to be influenced by the absence in the catalogue of any mention of the use of Dynafax camera for cinematographic purposes. To put it differently, after having admitted that the functioning of the Dynafax camera is the same as Cinematographic camera, he allowed himself to be influenced by a totally extraneous consideration, namely that the use is not that of a cinematographic camera. The appellants, therefore, pleaded for setting aside the impugned order and allowing the classification of the Dynafax Camera under the Heading 90.08 of the CTA.
7. Shri Raghavan Iyer, SDR, equally forcefully contended that the Dynafax Camera is not a cinematographic camera as it is commonly understood, and more so when the scope of the Heading 90.08 of CTA is restrictive in nature to cinematographic cameras. As such, the appellants cannot claim the classification under the heading as cinematographic camera despite similarity in some of the features of the Dynafax camera which were amplified by the learned counsel in the course of his arguments. According to Shri Raghavan Iyer, “projection” is one of the essential elements in cinematography and inasmuch as there is no projection involved in the instant case, it would automatically be disqualified for being classified as a cinematographic camera. He cited a plethora of judgments to support his arguments as to what would strictly constitute cinematography. For this purpose, he sought to place reliance on the various judgments and in particular to the decision in Nazima Traders v. Union of India (AIR 1965 AP Page 200). According to Shri Iyer, the word “Camera” is an abbreviated form of cinematograph and in its ordinary signification, would include cine film. One of the meanings of this word as given in the Chambers 20th Century Dictionary is “a building in which photographs or pictures are shown”. In other words, even in common parlance, a cinema is equated to a film exhibiting theatre. Shri Iyer also drew attention to the case AIR 1981 SC 1079 wherein the question of the construction of expressions in ordinary commercial parlance as against a purely technical interpretation was discussed. Last but not the least, Shri Raghavan Iyer submitted that in the Collector’s Conference-held on 11/12th January, 1979, the specific question of classifying Dynafax High Speed Camera-350 came up for consideration and it was held that the Dynafax Camera was a recording camera as described in the Explanatory Note 3, page 1544 of Volume IV, Customs Cooperation Council Nomenclature and would, therefore, be classifiable under Heading 90.07. In other words, that the unanimous view of the aforesaid Conference should also be borne in mind while considering the appropriate heading under which a Dynafax High Speed Camera could be classified under CTA.
8. We have given our careful and utmost consideration to the weighty arguments advanced from both sides and in fact, the forensic excellence of a very high order displayed by the learned counsel for the appellant as well as the Senior Departmental Representative has rendered our task a little more difficult but none-the-less they help to clear various areas of doubt and serve to throw light on the dark corners.
9. On the basis of the features of the Dynafax camera that were lucidly explained with the help of illustrations and the working of the various parts, there would seem to be no doubt that functionally Dynafax-350 camera is very much akin to a cinematograph camera. If that be so, it would not appear to stand to reason that a proper classification should be clouded by other factors, namely the short length of the film or the absence of cent-percent identity in the constructional features of the Dynafax camera and the cinematograph camera as such. Nor would the end use namely “for cinematographic purposes” militate against Dynafax camera being eligible for classification under 90.08, if otherwise from the overwhelming similarity of the various features, the said camera satisfies the test.
10. As regards the arguments advanced .by the learned Departmental Representative that the Dynafax Camera stand dis-qualified for being classified as a cinematographic camera due to the absence of the element of “projection” in the said camera, that does not appear to be a sound way of looking at the matter. While in cinematography as such, there would be various stages culminating in ‘projection’, it would be too tenuous to contend that the absence of one or the other, which in the instant case is the absence of ‘projection’ should be given that amount of weight as to negative the claim for legitimate classification, if the existence of other features warrant such a conclusion. Recourse to rules of construction and reference to popular parlance would be of no avail in arriving at appropriate decision in a technical case of this kind. For example, in the case of Ram avatar Budhaiprasad v. Assistant Sales Tax officer (AIR 1961 S.C. 1325), the Supreme Court had to deal with the construction of a word “Vegetables” occurring in C.P. and Berar Sales Tax Act, 1947. In that context, the Court observed thus :
“But this word must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance. It has not been defined in the Act and being a word of every day use it must be construed in its popular sense meaning ‘that sense which people conversant with the subject matter with which the statute is dealing with attribute to it’. It is to be construed as understood in common language.
But it should be appreciated that the view taken in this case was in respect of “a word of everyday use”, namely “vegetable” and that warranted a construction by taking the popular sense. To put it differently, it would be a grave error if this rule of construction were to be applied to in a case which would not be on all fours as is the present one where the interpretation relates to classifying an item of a highly technical nature, namely Dynafax, High Speed Camera which cannot be construed as an article of everyday use as it would rightly be so in the case of ‘vegetables’. It would be interesting to recall a pithy observation of Stor in tt’3 case of “200 chests of Tea” (1824) 9 Wheaton (US) 43′. Said the judge in that case : “The Legislature does not suppose our merchants to be naturalists, or geologists, or botanists. This would, in a nut-shell, illustrate the circumstances in which rules of construction could be invoked and one rule of construction which would be very relevant and germane in a particular set of circumstances would not apply in a case involving totally different factors and, if so applied may perhaps lead to an absurd result.
11. As for the argument of the learned Departmental Representative about the view taken at the Collector’s Conference held in January, 1979 classifying Dynafax Camera (Model 350) under Tariff Heading 90.07, we would only like to observe in passing that so far as this Tribunal is concerned, it would have no binding effect.
12. In the light of the foregoing, we are in favour of taking a view which would give the benefit of classification of Dynafax Camera under Heading 90.08 of the CTA. Accordingly, the impugned order is set aside and the appeal is allowed.