ORDER
Jyoti Balasundaram, Member (J)
1. The issue to be decided in this appeal is whether the benefit of Notification No. 125/86 at SI. No. 25 thereof, which covers “filling for thermo formed trays and top sealing machines” is available to the Gasti filling and aluminium lid sealing machine for thermo formed cups imported by the appellants herein, and assessed under Heading 8422.30 of the CTA, 1975 which covers machinery for filling, closing, sealing, capsuling or labelling, bottles, cans, boxes, bags or other containers, machinery for aerating beverages.
2. The contention of Shri A.K. Patnaik, learned Counsel for the appellants is that since the imported machine was a top sealing machine, it was eligible to the benefit of the notification as top sealing machine whether for cups or trays, came within the scope of the relevants entry therein.
3. We are unable to accept this argument as in our opinion SI. No. 25 of the Notification covers only machines for filling and top sealing of thermo formed brays. Machines for filling and top sealing of other types of containers are outside the purview of this entry. Our view is fortified by the subsequent addition of SI. No. 47 to Notification 125/86 which covers “machinery for lid sealing and or coding or marking of trays/cups made from paper board or plastics or combination of the two materials. Thus it is seen that machines for lid sealing of cups were extended the benefit of the Notification only with the addition of this entry, which was not in existence during the period when the appellants imported the item in dispute.
4. In view of the above discussion, we hold that the benefit of the Notification is not available to the imported machine, confirm the impugned order and reject the appeal.
S.K. Bhatnagar, Vice President
5. This is an appeal against the order of Collector of Customs (Appeals), Bombay dated 7-3-1990.
6. Ld. Counsel stated that the appellants namely M/s. National Dairy v-Development Board had imported ‘GASTI Filling and Aluminium Lid Sealing Machine’ and claimed benefit of Notification No. 125/86-Cus. According to them Notification 125/86 at Sr. No. 25 covers ‘Filling for thermo-formed trays and top sealing machines’ and therefore it was their contention that their Lid Sealing Machine was entitled to its benefit.
7. He argued that the fact that it could also be used for filling of thermo-formed trays would not make any difference as it has already been held that if a machine covered by a notification is capable of more than one functions, it should not be denied the benefit on this ground.
It was also his submission that the Hon. Supreme Court has in the case of Bombay Chemical Pvt. Ltd. 1995 (77) E.L.T. 3 (SC) observed that an exemption notification is to be strictly construed to see whether a particular article is capable of falling in one or the other category specified in the notification but once it falls under the exemption notification it has to be construed broadly and widely. He would also like to draw attention to the Tribunal’s order in the case of Western Refrigeration Pvt. Ltd. v. C.C. Bombay – 1995 (77) E.L.T. 673 (Tribunal) in which it has been held inter alia, that in the case of a refrigeration post mix beverage fountain, a single unit composite machine performing the function of refrigeration and automatic service of a required quantity of chilled and carbonated soft drink through the outlets. When the goods are accepted as refrigerating equipment for the purpose of tariff entry, then benefit of the notification entry which is identically worded cannot be denied to the machine. It has also been held in the case of CCE, New Delhi v. Louis Shoppe – 1995 (75) E.L.T. 571 (Tribunal) that while looking at the notification, true intention has to be looked into.
8. Ld. Counsel emphasised that in the light of the above orders and judgment, if the entry is studied, it would be seen that it speaks about two types of machines: (a) the machine which fills thermo-formed trays and (b) the machine which seals the tops of thermo-formed containers which could be a thermo-formed tray, cup or other forms of thermo-formed containers. Hence, the imported machine which was a top sealing machine, apart from being a filling machine was eligible.
9. The entry at Sr. No. 47 speaks about the machinery for lid sealing and/or/coding and making of trays/cups made from paper board or plastics or combination of these two materials. In other words, this entry shows that trays and cups have been taken to be synonymous. However, the machine at Sr. No. 47 is not the same as the machine at Sr. No. 25 inasmuch as Sr. No. 25 speaks of top sealing mahines in general, whereas Serial No. 47 speaks about lid sealing etc., of trays/cups machines but both the Sr. Nos. speak about two types of machines. It was their contention that the ld. Collector (Appeals) observations were specious. The mention of cups against one Serial No. and the non-mention of it in another Serial No. did not mean that the machine at Sr. No. 25 was not entitled to the benefit, so long it was capable of sealing the tops of thermo-formed containers whether in the form of trays, cups or other such containers and the department has not disputed that the imported machine was capable of top sealing thermo-formed trays.
10. Ld. DR drew attention to the order-in-original and order-in-appeal and reiterated that under Sr. No. 25, the Government has extended the benefit to the trays only and not to the cups with a deliberate intention and only subsequently, by an amendment, the benefit was extended to the machine capable of lid sealing of trays as well as cups. While doing so, Sr. No. 25 was left unchanged and a distinction between trays and cups was introduced as evident from the language of Sr. No. 47. Omission of ‘cups’ in Sr. No. 25 is therefore, deliberate and not inadvertent. There are a number of judgments of the Supreme Court and the High Courts to the effect that the assessing officers have to go by a plain reading of the notification. In support of this contention, he would cite the following cases :
1. 1994 (4) RLT 323 (S.C.) – Novopan India Ltd. v. C.C.E.
2. 1995 (77) E.L.T. 474 (S.C.) – Rajasthan Spinning and Weaving Mills Ltd. v. CCE
3. 1995 (77) E.L.T. 32 (S.C.) – Bombay Oil Mills v. UOI
He would also like to mention that sealing at the top is to be generally done by aluminium piece mostly in food article like fruit juices but rarely in case of icecreams as claimed by the appellants before the Collector (Appeals).
11. We have considered the above submissions and also perused the pamphlet titled as GASTI informierrt Jagenberg Verpackungstechnik indicating ‘special features and advantages of GASTI cup filling and sealing machines.’
12. In the Bill of Entry, the machine has been described as Tilling and Aluminium Lid Sealing machine for thermo-formed cups’. The description of the above pamphlet also talks of continuously operating cups filling and sealing machine. For the volumetric, low-count filling of liquid to pasty foods into pre-made, stackable plastic cups, followed by heatsealing an alum, diaphragm lid or applying an snap-in or snap-on lid. Combined closure will also be possible. The operation method is also indicated as follows :-
Operation Method:
The cups manually and stackwise placed into the cup destacker are automatically separated and inserted in the pockets of the continuously running cup transport chain on which they are transported to the individual function groups such as filling station, lid applying station and sealing station.
During the transport the cups are neither accelerated nor decelerated.
Two cups are filled and sealed simultaneously.
This shows that the imported item is a single machine capable of performing filling as well as sealing of cups i.e. it is performing both the functions in respect of cups; But the Sr. No. 25 speaks of a machine capable of filling and top sealing thermo-formed trays, and no material has been produced before us to show that the imported machine is capable of filling and top sealing thermo-formed trays as well.
13. Ld. DR has rightly drawn our attention to the fact that whereas this entry talks only of trays, the Entry No. 47 talks of trays/cups. Furthermore, we find that in the notification there are separate entries for filling and sealing machines meant for different types of containers. As for example Entry No. 24 is for filling and sealing machines for laminated collapsible tubes. Entry No. 26 is for filling and sealing system for bag-in-box with or without vacuum/gas flush system. Entry No. 54 for automatic tray forming, filling, ladding/over-wrapping, coding/marking machine fusing paper boarder plastics coated or laminated. Entry No. 11 is for automatic meat filling machines and Entry No. 17 is for form, fill and seal machine for flexible packaging material with either cacuumising or inert gas flushing or both. Entry No. 3 is for Vacuum fillers, and Entry No. 4 is for sauce filling machines. That is to say there are different entries for different types of containers from the technical material that after the cups have been filled and sealed they could be packed into cartons/trays/plastic trays etc. with the help of extra devices called cup creators which is included in the operational extracts.
14. Neither Bill of Entry nor invoice description nor the submissions made before us show that the imported item was capable of top sealing of trays.
15. The case law cited by the ld. Counsel does not help their cause and a plain reading of the notification show that the distinction between various containers has been kept in view. Thus, there are separate entries for machine capable of sealing trays. Therefore, by reading the notification as a whole we come to the conclusion that Entry No. 25 covers only those machine which are capable of filling and sealing and thermo-formed trays (not other types of containers). Hence, the benefit of notification is not available to the imported item.