ORDER
G. Sankaran, Senior Vice President
1. This is an appeal against Order-in-Appeal No. B. Cus. 354/87, dated 24-8-1987 passed by the Collector of Customs (Appeals) Madras.
2. The issue for determination in this appeal is whether the consignment of designs and drawings imported by the appellants under Bill of Entry 7160/87, dated 13-4-1987 was liable to be charged to auxiliary duty of customs at 40% ad valorem in terms of Customs Notification No. 111/87, dated 1-3-1987, as held by the lower authorities or was exempt from the said duty in terms of Customs Notification 112/87, dated 1-3-1987.
3. There is no dispute as regards the classification under Heading 4906.00 of the First Schedule to the Customs Tariff Act, 1975 for the purpose of levy of basic duty of customs nor as regards the levy of additional duty of customs.
4. We have heard Shri V. Sridharan, learned counsel, for the appellants and Shri V. Chandrasekaran, SDR, for the respondent-Collector.
5. Auxiliary duty of customs was leviable, under Section 95 of the Finance Bill of 1987, which subsequently was enacted into the Finance Act, on goods mentioned in the First Schedule to the Customs Tariff Act at the rate of 50% of the value of the goods as determined in accordance with the provisions of Section 14 of the Customs Act, 1962. Sub-section (3) of Section 95 of the Finance Bill provided that the auxiliary duty of customs shall be in addition to any duties of customs chargeable on such goods under the Customs Act, or any other law, for the time being in force. The Memo of Appeal before us has strenuously expatiated on the submission that the import of sub-section (3) is that auxiliary duty would be leviable only if some duty of customs was chargeable on the goods in question under the Customs Act or any other law (here, the Customs Tariff Act) for the time being in force. The goods were admittedly charged to basic customs duty under Heading 49.06, which reads as follows :-
————————————————————————
Heading No. Sub-Heading Description of article Rate of duty
No.
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49.06 4906.00 Plans and drawings for architec- Free
tural, engineering, industrial,
commercial, topographical or
similar purposes, being originals
drawn by hand; hand-written
texts; photographic reproduc-
tions on sensitised paper and
carbon copies of the foregoing.
------------------------------------------------------------------------
The submission is that since the goods were not leviable to any duty of customs under the Customs Tariff Act, sub-section (3) of Section 95 of the Finance Bill precluded the levy of any auxiliary duty on the said goods. This submission has only to be stated to be rejected. Perhaps, that was why the Learned Counsel for the appellants did not urge this ground before us. The expression “any duties of customs” occurring in sub-section (3) of Section 95 of the Finance Bill should, in our view, be construed as, and meaning, duties of customs, if any. The sub-section cannot be read in the manner urged by the appellants. It is clear that the auxiliary duty of customs is chargeable in addition to any duties of customs chargeable, inter alia, under the Customs Tariff Act. This would not mean that if no duty of customs is chargeable under any other law, the auxiliary duty leviable under sub-section (1) of Section 95 of the Finance Bill would also not be, for that reason, chargeable. The measure of the charge of auxiliary duty is, as noted earlier, 50% of the value of the goods. This measure is contained in sub-section (1). When this is so, subsection (3) cannot be called in aid of the view (which we hold as untenable) that if no duty of customs is chargeable under any other law, auxiliary duty is not chargeable in terms of sub-section (1) of Section 95 of the Finance Bill.
6. The debate in the hearing centred round the appropriate interpretation of Notification 112/87, dated 1-3-1987. This notification exempted the goods specified in the Table annexed thereto from the whole of the auxiliary duty of customs leviable thereon. The Table read as follows :-
————————————————————————
SI.No. Chapter of First Description of goods
Schedule to Customs
Tariff 1975
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24 49 or 99 Paper money, printed books (including covers for
printed books), periodicals (including news papers)
maps, charts, and plans, proofs, music manuscripts
and illustrations specially made for binding in books.
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The Ld. Counsel would contend that the word “plans” used in the notification should be construed to mean and include “plans and drawings” as set out in Heading 49.06 of the First Schedule to the Customs Tariff Act. On the other hand, the Learned D.R. would contend that the word “plans” should be read as it is and cannot be considered to mean and include “plans and drawings”.
7. Many dictionaries have been cited before us in support of the contention that “plans” include “drawings”. Some of them are given below :-
“The New Lexicon Webster’s Dictionary of the English Language Volume 2.
Plan 1. A design for a construction, lay-out system etc. a drawing representing a horizontal section of a solid object a detailed diagram.”
“The Shorter Oxford English Dictionary – Vol. II
Plan :… 1. A drawing, sketch, etc. of any object, made by projection upon a flat surface. A drawing showing the relative positions of the parts of a building, or of any one floor of a building on a horizontal plane (b) a large scale, detailed map of a town or district. 2. A scheme of arrangement; transf. disposition of parts; a type of structure (viewed as designed); configuration (of a surface) 1732. 3. A scheme of action, project, design; the way in which it is proposed to carry out some proceeding.”
“The New Oxford Illustrated Dictionary:
Plan. Drawing, diagram, made by projection on flat surface, esp. one showing relative position of parts of (one floor of) a building, large scale detailed map of town or district; table indicating times, places etc., of intended proceedings, etc., scheme of arrangement; project, design; way of proceeding; (prospective) any of the imaginary planes, perpendicular to line of vision, passing through objects shown in picture. Planless adj. Plan. make a plan of (ground, existing building); design (building to be constructed etc.); scheme, arrange beforehand.”
Webster’s New Dictionary of Synonyms
“Plan : In a narrower sense, the terms may imply a graphic representation of such a method (as by a mechanical drawing, a chart, a sketch, or a layout) (an architect’s set of plan) (plan a garden).”
According to Black’s Law Dictionary, Fifth Edition :
Plan “A definition; a design; a draft; form or representation. The repre sentation of any thing drawn on a plane, as a map or chart; a scheme; a sketch. Also, method of design or action, procedure, or arrangement for accomplishment of a particular act or object.
Design “To form plan or scheme of, conceive and arrange in mins, originate mentally, plant out, contrive. Also, the plan or scheme conceived in mind and intended for subsequent execution; preliminary conception of idea to be carried into effect by action; contrivance in accordance with preconceived plan”. A project, an idea. As a term of art, the giving of a visible form to the conceptions of the mind, or invention. In evidence, purpose or intention, combined with plan, or implying a plan in the mind”.
“Legal Glossary” 3rd Edition 1983 Government of India, Ministry of Law, Justice and Company Affairs”
Plan 1) a drawing, sketch etc, of any object made by projection upon a flat surface (S. 83, Indian Evidence Act).
2)…
3) to design.
McGraw Hill Dictionary of Scientific and Technical Terms 3rd Edition 1984.
Plan 1) An orthographic drawing on a horizontal plane, as of an instrument, a horizontal section, or a layout.
2) A large scale map or chart of a small area.
McGraw Hill Dictionary -1975 Second Edition
Definition of scientific and technical terms meaning of Design is described as : The act of conceiving and planning the structure and parameter values, designs, process or work of art. Artographic drawing on a horizontal plane as of an instrument, a horizontal section or a layout, large scale map or chart of a small area.
The illustrated Heritage Dictionary and information Book Houghton Mif-fin Co. 1977 Edition :-
Plan 1) Any detailed scheme, programme, or method worked out beforehand for the accomplishment of an object, a plan of attack.
2)…
3)…
4) A drawing or diagram made to scale showing the structure or arrangement of same thing.
5)…
3) To draw or make a graphic representation of – intr. To make plans.
Websters New 20th Century Dictionary unabridged 2nd Edition 1979.
Plan 1) an outline; a draft; a map 2) a drawing or diagram showing the arrangement in horizontal section of a structure, piece of ground, etc. ... The Concise Oxford Dictionary of current English (6th Edition)
Plan 1) drawing or diagram, made by projection on flat surface (Cf. Elevation) esp. One showing relative position of parts of one floor of a building; large scale detailed map of town or district;
Chambers Twentieth Century Dictionary Design "to indicate; to draw; to form a plan of;"
Drawing “the art of representing objects or forms by lines drawn, shading, etc.; a picture in lines; as assigning by lot; act of pulling etc.”
Plan “n. a figure or representation of any thing projected on a plane or flat surface, esp. that of a building, floor, etc. as disposed on a ground; a large scale detailed map of a small area; a scheme for accomplishing a purpose….”
8. From the above extracts, it is evident that the term “plans” includes ‘drawings’ and ‘designs’. The Department’s contention is that the exemption notification should be construed to cover only “plans” because it does not specifically refer to ‘drawings’ in contra distinction to the tariff entry which sets out “plans and drawings”. To this, the reply of the Learned Counsel for the appellants is that the entry to be construed in the present dispute is not the one in the Tariff but that in the notification. To our mind, this argument is of no avail to the appellants since the notification sets out not merely the description of the goods intended to be covered by it but also the Chapters of the Customs Tariff Schedule under which the goods should fall. It, however, appears to us that when the term “plans” includes “drawings” in accordance with several dictionaries cited, there is no reason why the term should not be so construed as to correspond with its true meaning and why it should be held to exclude “drawings” only for the reason that the expression in the Tariff Entry covers both “plans and drawings”.
9. The Learned D.R. has contended that while plan is a concept, ‘drawing’ is its translation on paper or such other material. We cannot agree with this contention because, to our mind, it is evident that the term “plans” in the Tariff Entry or in the Notification could not, and have not, been used in the sense of concepts. Concepts are not “goods” and cannot be charged to duties of customs. Therefore, that meaning must be eschewed in the present context. It can be taken to mean only what it signifies in ordinary parlance, that is to say, ‘plans’, ‘designs’ and ‘drawings’ put on paper or some such material.
10. In the circumstances, we hold that the goods in question were eligible for exemption from levy of auxiliary duty of customs in terms of Customs Notification 112/87, dated 1-3-1987.
11. The Counsel for the appellants made certain submissions about a portion of the value of the goods being attributable to the cost of technical know-how which went behind the drawings. We did not allow him to raise this ground because it had not been urged before the lower authorities and the factual basis for raising such a ground was not available in the record. Similarly, we did not permit him to argue on the submission that ‘designs’ and ‘drawings’ are not “goods” chargeable to customs duty for the reason that this would have involved examining the vires and validity of the Tariff Entry which is beyond the Tribunal’s competence.
12. In the result, the impugned order is set aside and the appeal is allowed with consequential relief to the appellants.