{"id":9065,"date":"2005-08-05T00:00:00","date_gmt":"2005-08-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-customs-vs-ms-gujarat-perstorp-on-5-august-2005"},"modified":"2016-09-29T09:51:16","modified_gmt":"2016-09-29T04:21:16","slug":"commissioner-of-customs-vs-ms-gujarat-perstorp-on-5-august-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commissioner-of-customs-vs-ms-gujarat-perstorp-on-5-august-2005","title":{"rendered":"Commissioner Of Customs … vs M\/S. Gujarat Perstorp … on 5 August, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commissioner Of Customs … vs M\/S. Gujarat Perstorp … on 5 August, 2005<\/div>\n
Author: C Thakker<\/div>\n
Bench: Ruma Pal, Arijit Pasayat, C.K. Thakker<\/div>\n
           CASE NO.:\nAppeal (civil)  8568-8569 of 2001\n\nPETITIONER:\nCommissioner of Customs (General), N. Delhi\t\t\t\t\t\t\n\nRESPONDENT:\nM\/s. Gujarat Perstorp Electronics Ltd. \t\t\t\n\nDATE OF JUDGMENT: 05\/08\/2005\n\nBENCH:\nRuma Pal,Arijit Pasayat & C.K. Thakker\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nWITH
\nCIVIL APPEAL Nos. 8565-8567 OF 2001<\/p>\n
Commissioner of Customs
\n(Air Cargo) & Others\t\t\t\t\t\t.\tAppellants<\/p>\n
\t\t\t\t\tVersus<\/p>\n
M\/s Pearl Engineering Polymers
\nLtd. & Ors.\t\t\t\t\t\t\t\t. Respondents<\/p>\n
C.K. Thakker, J.\n<\/p>\n
\tThese appeals are directed against a common judgment and order
\ndated December 19, 2000 passed by the Customs, Excise and Gold (Control)
\nAppellate Tribunal (hereinafter referred to as ‘CEGAT’).  By the said order,
\nCEGAT disposed of five appeals filed by M\/s. Pearl Engineering Polymers
\nLimited (‘Company’ for short) and by its Directors as also by the
\nCommissioner of Customs, New Delhi.   CEGAT, by the order impugned in
\nthe present appeals, allowed three appeals filed by the Company and its two
\nDirectors and dismissed two appeals filed by the Commissioner of Customs.
\nCEGAT set aside the Order in Original passed by the Commissioner of
\nCustoms, New Delhi on December 30, 1997.\n<\/p>\n
\tTo appreciate the controversy raised in the present appeals, relevant
\nfacts as noted in the Order in Original by the Commissioner of Customs may
\nbe stated in brief.\n<\/p>\n
\tAccording to the Commissioner of Customs  appellant herein, M\/s.
\nPearl Engineering Polymers Limited (‘Company’) was registered under the
\nCompanies Act, 1956. Mr. Chand Seth was the Chairman-cum-Managing
\nDirector of the Company and Mr. Arun Gupta was whole time Director.  The
\nCompany was engaged in the manufacture of Polyester Chips (High
\nPressure and Molding Grades) and other Polyethelene Terephthlate (PET)
\nBottle Grade and Film Grade since 1995.  For the purpose of the said
\nproducts, the Company set up a plant at Kurkumbh, District Pune in the
\nState of Maharashtra.  The plant had been set up on the basis of the technical
\nknow how.  For that the Company entered into a ‘Know how’ and ‘Basic
\nEngineering Agreement’ with M\/s. Zimmer AG of Germany (‘Zimmer’ for
\nshort) on May 4, 1993.  The agreement was negotiated and signed by Mr.
\nChand Seth and Mr. Arun Gupta.  Both of them thus were aware of the terms
\nand conditions and contents of the agreement.  The agreement was approved
\nby the Ministry of Industry and also by the Reserve Bank of India.  The
\nprimary object of the agreement was to acquire requisite know how for the
\nproducts of the company.\n<\/p>\n
\tAccording to the Revenue, Intelligence was gathered by the Officers
\nof Directorate of Revenue Intelligence (DRI), Mumbai that the Company
\nhad imported actual goods under the Export Promotional Capital Goods
\n(EPCG) Scheme at the concessional rate of duty and thereafter diverted
\nsome of the goods in the local market.  It thus appeared that the Company
\nviolated conditions of import of capital goods under Para 14 of the “Export
\nand Import Policy, 1992-97” as the import of goods was subject to actual
\nuser condition till the export obligation was completed.  In view of the
\nIntelligence Report, details of the import by Company under EPCG Scheme
\nwere collected.    As per the details, the Company was issued licence Nos.\n<\/p>\n
(a) p\/CG\/2133135 dated 2.6.94, (b) p\/CG\/2133262 dated 9.7.94 and (c)
\nP\/CG\/2133763 dated 30.12.94.  After scrutiny of import documents, licences
\nwere issued.  The goods appeared to be imported in conformity with the
\nitems permitted under the licences.  The Company also submitted copies of
\nLetter of Credit (L\/C), Equipments Supply Agreement between Zimmer and
\nthe Company and copy of Proforma Invoice No. 1863 dated 4th May, 1993.
\nPhysical inspection of imported goods was also made by visiting the plant
\nsite.  The plant was in working condition and the capital goods indicated that
\nthere was no divergence of capital goods under EPCG Scheme.  On
\nverification of EPCG Scheme between Zimmer and the Company, it was
\nnoticed that the Company had collected from Zimmer Know how, Basic
\nEngineering Agreement and Technical Assistance Agreement.  The
\nCompany had imported designs, drawings and plans under the Know how
\nand Basic Engineering Agreement on which appropriate amount of customs
\nduty had not been paid.\n<\/p>\n
\t A show cause notice was, therefore, issued  on November 16, 1996 to
\nthe Company, Mr. Chand Seth, Chairman-cum-Managing Director and Mr.
\nArun Gupta, whole time Director asking them to show cause as to why
\ncustom duty amounting to Rs.4,18,12,425\/- should not be demanded under
\nSection 28(1) of the Customs Act, 1962; an amount of Rs.20,00,000\/-
\ndeposited by the Company voluntarily should not be adjusted against the
\nduty demanded;  the goods i.e. drawings, designs, plans etc. imported in
\nthree consignments having a total assessable value of Rs.7,98,33,370\/-
\nshould not be held liable to  confiscation under Section 111(m) of the Act
\nand penalty should not be imposed on each of them under Section 112 of the
\nAct.\n<\/p>\n
\t Mr. Chand Seth, Chairman-cum-Managing Director of the Company
\nreplied to the show cause notice stating therein that he being the Chairman-
\ncum-Managing Director of the Company was not involved in day-to-day
\nfunctioning of the Company which was taken care by Executives and other
\nemployees of the Company.   As the Chairman-cum-Managing Director,
\noverall policy decisions were taken by him.   He was, hence, not liable to
\npenal action under Section 112 of the Act as he was not involved in the
\nactual import of drawings, designs, plans, etc.<\/p>\n
\t Mr. Arun Gupta, Director of the Company, in his reply, contended
\nthat Know how and FEEP were procured through courier  after declaration
\nto Customs Authorities and one of the consignments was sought to be
\ncleared vide Bill of Entry dated December 28, 1993.  While the
\nclassification in the Bill of Entry was claimed under Chapter Heading 4906
\nand exemption under Notification No. 36\/93, the Customs Authorities were
\nof the view that Heading No. 4906 was not applicable.  According to him,
\nthe books were exempted from custom duty.  He, therefore, refuted the
\ncustom’s claim for reassessment under Chapter Heading 4911.  According to
\nhim, at any rate, the entire value for the consignment which came under Air
\nWay Bill was of Rs. 63.11 lacs (approx) as per Invoice Nos. 1836-02A and
\n1836-92B dated December 22, 1993 which could not be taken as value of
\ndrawings for the reason that the consideration was to be appropriated against
\nseveral other obligations of Zimmer under the agreement.  The consignment
\ncame after full declaration to the Custom Authorities and there was bona
\nfide belief on the part of the company that the drawings were fully exempted
\nunder Chapter Heading 4906.  At any rate, books were exempted under
\nvarious notifications.  There was thus no intention to evade payment of
\ncustom duty.  The plea taken on valuation of drawings at DM 1,30,000\/-  in
\nthe letter dated September 30, 1997 was without prejudice to the basic
\ncontention that the entire consignment was exempted as ‘books’ and not
\nliable to payment of duty.  No penalty, therefore, could be imposed either on
\nthe Company or on the officers.\n<\/p>\n
\tPersonal hearing was afforded to the Company on October 01, 1997.
\nAdvocates for the Company appeared.   Mr. Chand Seth, Chairman-cum-
\nManaging Director, Mr. Arun Gupta, Director and K. Srinivas, Consultant
\ncontested the matter.  Time was sought for filing written arguments which
\nwas granted and written submissions were filed on 10th October, 1997
\nraising several contentions on the basis of various clauses in the agreement
\nand on the merits of the matter.  Reliance was also placed on certain
\ndecisions of this Court as well as of CEGAT.  The main argument on behalf
\nof the Company was that the supply was of printed books which was
\ncovered by Chapter Heading 49.01.  Since they were exempted under
\nNotification No. 107\/’93-Cus dated March 30, 1993 and Notification No.
\n38\/’94-Cus dated March 1994, the Company was not at all liable to pay
\ncustom duty.  The Company also contended that the notifications were
\nomnibus notifications and even if goods were covered by Chapter Heading
\n49.06 or 49.11, full exemption was granted.  Thus, notwithstanding the fact
\nthat FEEP could be classified under Chapter Heading 49.11, in view of they
\nbeing “Book” were covered by Exemption Notifications and there was no
\nliability of the Company to pay custom duty.   Reference was also made to
\nHSN notes and it was submitted that Drawings, Designs and Plans could be
\nclassified as Printed Books by virtue of Interpretation Rules of 1988.  The
\nentire FEEP, therefore, could be exempted and there was no substance in the
\nallegation of the department that the Company was liable to pay custom
\nduty.  Objections were also raised as to limitation and on valuation.\n<\/p>\n
\tThe case of the department, on the other hand, was that FEEP and
\nDrawings, Designs and Plans ought to be classified under Chapter Heading
\n49.11.  As they could neither be covered by 4911.10 (Trade Advertising
\nMaterial, Commercial Catalogues and the like) nor by 4911.11 (Pictures,
\nDesigns and Photographs), the relevant entry was sub-heading 4911.99
\n(Others) and was liable to pay customs duty at 25%.\n<\/p>\n
\tThe Commissioner of Customs considered the averments of the
\ndepartment and the reply submitted by the Company and by Mr. Gupta.
\nAccording to the Commissioner, an agreement was entered into between
\nZimmer and the Company and the said fact was admitted by the Company.
\nIn consideration of supply of FEEP, an amount of BM 34,00,000\/-
\nequivalent to Rs.7,98,33,370\/- was to be paid by the Company to  Zimmer.
\nOut of the said amount, DM 26,00,000\/- was to be paid for FEEP and DM
\n8,00,000\/- was for Know how.  Considering the decisions cited before him,
\nthe Commissioner held that the goods imported under Know how pertained
\nto processes and were in the shape of manuals, brochures or leaflets.
\nAccording to him, printed books and manuals both were classified under
\nsub-heading 4901.99 but were distinguishable.  Exemption Notifications
\nreferred by the Company applied to Printed Books under Chapter Heading
\n49 but did not apply to the goods in question.  He, therefore, held that the
\ntechnical documents imported by the Company as part of Know how were
\nnot ‘Books’ but were manuals\/brochures classifiable under Chapter sub-
\nheading 4901.99 and were not exempted under the Exemption Notifications.
\nThe Company was, therefore, liable to pay duty thereon.
\n\tAccordingly, the following order was passed :\n<\/p>\n
\t\t\tORDER
\n“54.  In view of the findings hereinabove:-\n<\/p>\n
a)\tI confirm duty demand of Rs.4,18,12,425\/-.\n<\/p>\n
b)\tI order adjustment of the amount of Rs.30 lakhs
\ndeposited by M\/s. Pearl Engineering Polymer Ltd., voluntarily,
\ntowards the above confirmed demand of duty and direct that
\nthe remaining amount be paid forthwith.\n<\/p>\n
c)\tI hold that the goods are liable to confiscation under
\nSection 111(m) of the Customs Act, 1962.  However, since the
\ngoods are not available, I refrain from ordering confiscation.\n<\/p>\n
d)\tI impose under Section 112 of the Customs Act, 1962 a
\npenalty of Rs.1 crore (Rupee one crore) on M\/s. Pearl
\nEngineering Polymer Ltd.,\n<\/p>\n
e)\tI impose penalty of Rs.50 lakhs (Rupees fifty lakhs) on
\nShri Chand Seth, Chairman-cum-Managing Director of M\/s.
\nPearl Engineering Polymer Ltd., under Section 112 of the
\nCustoms Act.\n<\/p>\n
f)\tI also impose a penalty of Rs.25 lakhs (Rupees twenty
\nfive lakhs) on Shri Arun Gupta, Director of M\/s. Pearl
\nEngineering Polymers Ltd., under Section 112 of the Customs
\nAct, 1962.\n<\/p>\n
55.\tThe penalties shall be paid forthwith.”\n<\/p>\n
\tBeing aggrieved by the Order in Original passed by the Commissioner
\nof Customs, five appeals came to be registered before CEGAT.  One appeal
\nwas preferred by the Company against the decision of the Commissioner
\nholding that the goods were liable to payment of custom duty and not
\ncovered by Chapter Heading 4901.  Two appeals were filed by Mr. Chand
\nSeth, Chairman-cum-Managing Director  and Mr. Arun Gupta, Director
\nagainst payment of penalty of Rs.50,00,000\/- and Rs.25,00,000\/-
\nrespectively.  Two cross appeals were filed by the Department against
\nquantum of penalty imposed on Mr. Chand Seth and Mr. Arun Gupta
\ncontending that the penalty imposed by the Commissioner of Customs was
\ninadequate and was required to be enhanced.\n<\/p>\n
\tCEGAT took up for consideration all the appeals.  It observed that an
\nidentical question  come for consideration before a Larger Bench of CEGAT
\nin Parasrampuria Synthetics Ltd. vs. Commissioner of Customs, New Delhi,
\n(2000) 119 ELT 211 :  (2000) 38 RLT 846 (LB).  It noted that the Larger
\nBench was faced with the issue as to whether the law laid down by a two-
\nmember Bench in Tractors & Farm Equipment Ltd. vs. Collector of
\nCustoms,<\/a> (1993) 68 ELT 234  was correct or decisions of Coordinate
\nBenches in Mitutronics vs. Collector of Customs, (1990) 46 ELT 500, Roto
\nInks (P) Ltd. vs. Collector of Customs, (1990) 47 ELT 398, Tata
\nConsultancy Service vs. Collector of Customs, (1991) 53 ELT 454, Collector
\nof Customs, Madras vs. Tata Elxsi India Ltd., (1995) 78 ELT 370, Laakshmi
\nCement vs. Collector of Customs, New Delhi, (1996) 84 ELT 271,  were
\ncorrect.  CEGAT proceeded to state that after a survey on the entire case
\nlaw, the Larger Bench in Parasrampuria Synthetics Ltd. took the view that
\nthe law laid down by two-member Bench in Tractors & Farm Equipment
\nLtd. did not lay down correct law and accordingly overruled it.  The
\ndecisions in other cases were correct and the said view was affirmed.  In
\nthose decisions, it was held that printed materials could be said to be
\n“Books” covered under Chapter Heading 4901 and were entitled to full
\nexemption and consequently no duty was leviable on the goods imported.
\nCEGAT noted that the decision of the Larger Bench was binding on it.
\nAccordingly, the appeals filed by the Company as well as by the Chairman-
\ncum-Managing Director and the Director were allowed by setting aside the
\norder passed by the Commissioner imposing duty and penalty.  Resultantly,
\ntwo appeals filed by the Department for enhancement of penalty on
\nChairman-cum-Managing Director and  Director were dismissed.\n<\/p>\n
\tAgainst the order passed by CEGAT, the department has filed these
\nappeals.  One of the appeals came up for preliminary hearing before a three
\nJudge Bench on December 14, 2001.  Delay was condoned and appeal was
\nadmitted.  Notice was also issued for interim relief.  In the meantime, stay
\nwas granted against refund of amount if not already refunded.  The interim
\norder was thereafter continued and hearing was expedited.  On May 01,
\n2003, the appeals were placed for hearing before a two Judge Bench and the
\nfollowing order was passed :\n<\/p>\n
“Heard the learned counsel for the parties.\n<\/p>\n
Learned counsel for the appellant submits that the
\nquestion involved in these appeals is covered by the
\ndecision rendered by this Court in Commissioner of
\nCustoms, New Delhi vs. Parasrampuria Synthetics Ltd.,<\/a>
\n(2001) 9 SCC 74 which reveals that the tribunal’s
\njudgment on which the reliance was placed was set
\naside.  As against this, Dr. A.M. Singhvi, learned senior
\ncounsel appearing on behalf of the respondent relied
\nupon the decision rendered by this Court in A.C.C. vs.
\nCommercial Tax Officer,<\/a>  (2001) 4 SCC 593.\n<\/p>\n
\tConsidering the aforesaid two decisions, there
\nappears some conflict in the ratio laid down in both the
\ncases.  Hence, these appeals are referred to a larger
\nBench.\n<\/p>\n
\tRegistry to place the papers before Hon’ble the
\nChief Justice of India for appropriate direction in this
\nregard to place it before an appropriate Bench.”\n<\/p>\n
\tThat is how the matters were placed before us for final hearing.  We
\nhave heard learned counsel for the parties.\n<\/p>\n
\tAt the time of hearing of appeals, the learned counsel for the appellant
\nstated that three questions arise for consideration of this Court :\n<\/p>\n
(i)\tWhether the goods imported by the Company in the form
\nFEEP (Front End Engineering Package) comprising of
\ntechnical documentation, designs and drawings are classifiable
\nunder Chapter sub-heading 4911.99 of the Customs Tariff?\n<\/p>\n
(ii)\tWhether the goods imported by the appellant in the form
\nof know-how containing latest up-to-date technical data and
\ninformation including secret technical knowledge relating to
\nthe processes and their employment to the design, operation
\nand maintenance of the plant, are classifiable under Chapter
\nsub-heading 4901.99 of the Customs Tariff?\n<\/p>\n
(iii)\tWhether goods, as described in (a) & (b) above, can be
\nconsidered as “Printed Book” classifiable under Chapter 49 of
\nthe Customs Tariff in order to avail the benefit of Notification
\nNos. 107\/93-Cus and 38\/94-Cus?”\n<\/p>\n
\tIt was urged that CEGAT had allowed appeals filed by the Company,
\nChairman-cum-Managing Director and Director and dismissed the appeals
\nfiled by the Department solely on the ground that the point was covered by a
\nLarger Bench decision of CEGAT in Parasrampuria Synthetics Ltd.   It was
\nsubmitted that the decision of the Larger Bench of CEGAT in
\nParasrampuria Synthetics Ltd. was challenged by the Department in this
\nCourt and this Court in Commissioner of Customs, New Delhi vs.
\nParasrampuria Synthetics Ltd.,<\/a>  (2001) 9 SCC 74  : (2001) 133 ELT 9 (SC),
\nset it aside  allowing the appeal filed by the Department.   Since the decision
\nof the Larger Bench of CEGAT cannot be said to be a good law in view of
\nthe decision of this Court referred to above, all the appeals deserve to be
\nallowed by setting aside the order passed by CEGAT.\n<\/p>\n
\tThe learned counsel for the respondent-Company, on the other hand,
\nsubmitted that the view taken by Larger Bench of CEGAT in Parasrampuria
\nSynthetics Ltd. was correct and in accordance with law.  It, therefore, could
\nnot have been interfered with by this Court as has been done in an appeal
\nagainst the decision and the decision of this Court in Commissioner of
\nCustoms, New Delhi vs. Parasrampuria Synthetics Ltd.<\/a>  does not lay down
\ncorrect law and deserves to be overruled.  It was also submitted that in that
\ncase, this Court did not consider in their proper perspective several decisions
\nparticularly decisions in Commissioner of Income Tax, Gujarat vs. Elecon
\nEngineering Company Ltd.,<\/a> (1974) 96 ITR 672 (Guj) and of this Court in
\nScientific Engineering House Ltd.  vs. CIT (1986) 1 SCC 11.  It was
\nsubmitted that though the point was directly covered by an earlier decision
\nof this Court, a two Judge Bench attempted to distinguish the said case and
\ncame to incorrect conclusion.  It was also submitted that earlier when these
\nappeals were placed for hearing, a two Judge Bench was prima facie
\nsatisfied that Parasrampuria Synthetics Ltd. was not correctly decided and
\nhence the matter was referred to a three Judge Bench.  It was, therefore,
\nsubmitted that the appeals deserve to be dismissed by confirming the order
\npassed by CEGAT.\n<\/p>\n
\tIn the alternative, it was submitted that since CEGAT allowed the
\nappeals filed by the Company, Chairman-cum-Managing Director and
\nDirector relying upon a Larger Bench decision in Parasrampuria Synthetics
\nLtd. holding that the goods imported by it could be said to be “Books” and
\nhence were exempted from payment of excise duty, other points though
\nargued and pressed into service at the time of hearing were not considered.
\nIt was, therefore, submitted that in case this Court holds that the contention
\nraised by the Department is well founded and the order passed by CEGAT
\nare liable to be set aside, the matters may be remitted to CEGAT directing it
\nto consider all the points and to decide them in accordance with law.\n<\/p>\n
\tThe question for consideration before us is whether the goods and
\nmaterials imported by the Company in the form of FEEP comprising of
\nEquipments, Drawings, Designs and Plans are classifiable under Chapter
\nHeading 49.01 or 49.06 of Schedule I of the Customs Tariff Act, 1975 and
\nthe Company is entitled to the benefit under notification Nos. 107\/93-Cus
\nand 38\/94-Cus or they are classifiable under Chapter Heading 4911.99 as
\ncontended by the department.\n<\/p>\n
\tBefore we deal with the actual question, it may be appropriate to refer
\nto the relevant provisions of law.  Section 2 of the Customs Tariff Act, 1975
\ndeclares the rates at which the custom duty is levied under the Customs Act,
\n1962 as specified in the First and the Second Schedule to the Act.   Chapter
\n49 of Schedule I deals with “Printed books, newspapers, pictures and other
\nproducts of the printing industry, manuscripts, typescripts and plans and
\nreads as under :\n<\/p>\n
\t\t\t\tCHAPTER 49
\nPrinted books, newspapers, pictures and other products of
\nthe printing industry; manuscripts, typescripts and plans<\/p>\n
Notes:\n<\/p>\n
1           .\t\t....\t\t\n2.\t..\t\t.\t\t.\n3.\t..\t\t.\t\t.\n4.\tHeading No. 49.01 also covers:\n<\/pre>\n
(a)  A collection of printed reproductions of, for
\nexample, works of art or drawings, with a relative text,
\nput up with numbered pages in a form suitable for
\nbinding into one or more volumes;\n<\/p>\n
(b) A pictorial supplement accompanying, and
\nsubsidiary to, a bound volume; and <\/p>\n
(c)  Printed parts of books or booklets, in the form of
\nassembled or separate sheets or signatures,
\nconstituting the whole or apart of a complete work and
\ndesigned for binding.\n<\/p>\n
5.\t.\t\t..\t\t..\n<\/p>\n
6.\t.\t\t..\t\t.\n<\/p>\n
\tThe relevant headings and sub-headings read thus :
\n“49.01\t\tPrinted books, brochures, leaflets and similar
\n\t\t\tprinted matter, whether or not in single sheets
\n4901.10  In single sheets, whether or not folded
\n\t\t\t\t\t\t\t\t25%
\n4901.91  Dictionaries and encyclopedias, and serial
\ninstaments thereof \t\t\t\t\t25%<\/p>\n
4901.99  Other\t\t\t\t\t25%
\n49.06    4906.00\tPlans and drawings for architectural,
\n\t\t\t\tengineering, industrial, commercial,
\n\t\t\t\ttopographical or similar purposes, being
\n\t\t\t\toriginals drawn by hand; hand-written
\n\t\t\t\ttexts photographic reproductions on
\n\t\t\t\tsensitized paper and carbon copies
\n\t\t\t\tof the foregoing\t\t\t25%<\/p>\n
49.11\tOther printed matters, including printed pictures and
\n\t\tphotographs<\/p>\n
49.11.10 \t Trade advertising material, commercial
\n\t\t\tcatalogues and the like              25% <\/p>\n
4911.91  Pictures, designs and photographs\t25%<\/p>\n
4911.99  Other\t\t\t\t\t25%<\/p>\n
\tThe relevant notifications are notification Nos. 107\/93-Cus., dated
\nMarch 30, 1993 and 38\/94-Cus; dated March 1, 1994.  The relevant part of
\nnotification NO. 107\/93-Cus reads as follows;
\n“Exemption to specified goods of Chapters 49 and 97
\n\tIn exercise of the powers conferred by sub-section
\n(1) of section 25 of the Customs Act, 1962 (52 of 1962)
\nand in supersession of the notification of the
\nGovernment of India in the Ministry of finance
\n(Department of Revenue) No. 36\/93  Customs, dated
\nthe 28th February, 1993, the Central Government, being
\nsatisfied that it is necessary in the public interest so to
\ndo, hereby exempts goods specified in column (3) of the
\nTable hereto annexed and falling within the Chapter or
\nunder the heading No. of the First Schedule to the
\nCustoms Tariff Act, 1975 (51 of 1975), as specified in
\nthe corresponding entry in column (2) of the said Table,
\nwhen imported into India, from the whole of the duty of
\ncustoms leviable thereon which is specified in the said
\nFirst Schedule.\n<\/p>\n
\t\t\tTABLE
\nS.No.   Chapter of Heading No.    Description of Goods\n<\/p>\n
1.\t49\tPrinted books (including covers for printed books)\n<\/p>\n
2.\t49.02\tPeriodicals (including newspapers).\n<\/p>\n
3.\t49.04\tMusic manuscripts.\n<\/p>\n
4.\t49.05\tMaps.\n<\/p>\n
5.\t49.05\tCharts\n<\/p>\n
6.\t49.06\tPlans, drawings and designs\n<\/p>\n
7.\t97.04\tPostage stamps, used or if unused not of current
\n\t\tor new issue in the country to which they are
\n\t\tdestined.\n<\/p>\n
8.\t97.05\tMetals
\n[Notification No. 107\/93-Cus., dated 30.3.1993]<\/p>\n
\tThe other notification is notification No. 38\/94-Cus., 1st March, 1994.
\nIt is “General Exemption No. 193B”.  The relevant part thereof reads as
\nunder:\n<\/p>\n
“Effective rates for specified goods falling within
\nChapters 40, 41, 43, 44, 47, 48, 49 and 97<\/p>\n
In exercise of the powers conferred by sub-section (1) of
\nsection 25 of the Customs Act, 1962 (52 of 1962), the
\nCentral Government, being satisfied that it is necessary in
\nthe public interest so to do, hereby exempts goods of the
\ndescription specified in column (3) of the Table hereto
\nannexed, and falling within Chapters, heading Nos. or
\nsub-heading Nos. of the First Schedule to the Customs
\nTariff Act, 1975 (51 of 1975) as are specified in the
\ncorresponding entry in column (2) of the said Table, when
\nimported into India, from so much of the duty of customs
\nleviable thereon which is specified in the said First
\nSchedule, as is in excess of the amount calculated at the
\nrate specified in the corresponding entry in column (4) of
\nthe said Table, subject to the conditions, if any, laid down
\nin the corresponding entry in column (5) of the said
\nTable. <\/p>\n
\n\nS.No.  Chapter\/heading No.  Description of Rate     Condition    \n            Sub-heading No.         goods\n\n1  11\t\t.\t\t..\t\t.\n\n12.\t49\tPrinted books (including\n                  covers for printed books)              Nil\n\n13.  19   \t..\t\t.\t\t..\n\n<\/pre>\n
\t\t[Notification No. 38\/94-Cus., dated 1.3.1994]<\/p>\n
\tNotification No. 25\/95Cus. dated 16th March, 1995 is also important.
\nThe relevant part of which reads thus;\n<\/p>\n
“19.\tEFFECTIVE RATES OF DUTY FOR GOODS
\nOF VARIOUS CHAPTERS\/HEADINGS<\/p>\n
\tGENERAL EXEMPTION NO. 121<\/span>
\n\tEffective rates of duty for specified goods of
\nChapters 40, 41, 44, 47, 48 and 49.  In exercise of the
\npowers conferred by sub-section (1) of Section 25 of the
\nCustoms Act, 1962 (52 of 1962), the Central
\nGovernment, being satisfied that it is necessary in the
\npublic interest so to do, hereby exempts goods specified
\nin column (3) of the Table hereto annexed, and falling
\nwithin Chapter, heading No. or sub-heading No. of the
\nFirst Schedule to the Customs Tariff Act, 1975 (51 of
\n1975) as are specified in the corresponding entry in
\ncolumn (2) of the said Table, when imported into India,
\nfrom so much of the duty of customs leviable thereon
\nwhich is specified in the said First Schedule, as is in
\nexcess of the amount calculated at the rate specified in
\nthe corresponding entry in column (4) of the said Table,
\nsubject to the condition, if any laid down in the
\ncorresponding entry in column (5) of the said Table. <\/p>\n
\n\nS.No.  Chapter or heading    Description of   Rate   Conditions\n          No. of sub heading No.    goods\n\n9.\t.\t\t.\t\t..\t.\n\n10.\t49.\tPrinted books (including covers    NIL\n\t\tfor printed books) and printed\n\t\tmanuals including those in \n\t\tloose-leaf form with binder)\n\n11.  16. \t.\t\t..\n\n\n<\/pre>\n
\tIt is also appropriate at this stage to refer to Harmonized System of
\nNomenclature (HSN).  The relevant part reads thus;\n<\/p>\n
“49.01 –\tPRINTED BOOKS, BROCHURES,
\nLEAFLETS AND SIMILAR PRINTED MATTER,
\nWHETHER OR NOT IN SINGLE SHEETS.\n<\/p>\n
4901.10- In single sheets, whether or not folded\n<\/p>\n
\t\t– \tOther
\n4901.91 –\tDictionaries and encyclopedias, and serial
\n\t                     instalments thereof
\n4901.99  \tOther
\nThis heading covers virtually all publications and printed reading
\nmatter, illustrated or not with the exception of publicity matter
\nand products more specifically covered by other headings of the
\nchapter (particularly) heading 49.02, 49.03 or 49.95. It includes:
\n(A)\tBooks and booklets consisting essentially of textual
\n\t\tmatter of any kind and printed in any language or
\n\t\tcharacters, including Braille or shorthand.  They include
\n\t\tliterary works of all kinds, text books and technical
\n\t\tpublications: books of reference such as dictionaries,
\n\t\tencyclopaedias and directories; catalogues for museums
\n\t\tand public libraries (but not trade catalogues); liturgical
\n\t\tbooks such as prayer books and hymn books (other than
\n\t\tmusic hymn books of heading 49.04); children’s books
\n\t\t(other than children’s picture, drawing or colouring
\n\t\tbooks of heading 49.03).  Such books may be bound (in
\n\t\tpaper or with soft or stiff covers) in one or more
\n\t\tvolumes, or may be in the form of printed sheets
\n\t\tcomprising the whole or a part of the complete work and
\n\t\tdesigned for binding.\n<\/p>\n
\t\tDust covers, clasps, book-marks and other minor
\n\t\taccessories supplied with the books are regarded s
\n\t\tforming part of the book.\n<\/p>\n
(B)\tBrochures, pamphlets and leaflets, whether consisting
\n\t\tof several sheets of reading matter fastened together (e.g.,
\n\t\tstapled), or of unfastened sheets, or even of single sheets.
\n\t\tThese include publications such as : shorter scientific
\n\t\ttheses and monographs, instruction notices, etc., issued
\n\t\tby government departments or other bodies, tracts, hymn
\n\t\tsheets. Etc.\n<\/p>\n
(C)\tTextual matter in the form of sheets for binding in loose-\n<\/p>\n
\t\tleaf binders.\n<\/p>\n
The heading also covers :\n<\/p>\n
(1)\tNewspapers, journals and periodicals bound otherwise
\n\t\tthan in paper, and sets of newspapers, journals or
\n\t\tperiodicals comprising more than one number under a
\n\t\tsingle cover, whether or not containing advertising
\n\t\tmaterial.\n<\/p>\n
(2)\tBound picture books (other than children’s picture books
\n\t\tof heading 49.03).\n<\/p>\n
(3)\tA collection of printed reproductions of works of art,
\n\t\tdrawings, etc. with a relative text (for example, a
\n\t\tbiography of the artist), put up with numbered pages and
\n\t\tforming a whole suitable for binding.\n<\/p>\n
(4)\tA pictorial supplement accompanying and subsidiary to a
\n\t\tbound volume containing the relative text.\n<\/p>\n
\tA question similar to one with which we are concerned came up for
\nconsideration before the authorities in Parasrampuria Synthetics Ltd.   The
\nCentral Excise Authorities held that Drawings, Designs and Plans imported
\nby the Company could not be said to be “Books” within the meaning of
\nChapter Heading 49.01 but would be covered under sub-heading 4911.99
\nand hence were liable to custom duty.  The demand made by the authority,
\ntherefore, came to be confirmed by the Commissioner of Customs.  Being
\naggrieved by the order passed by Commissioner, the Company approached
\nCEGAT.   A two member Bench felt that there were conflicting decisions on
\nthe point which could appropriately be resolved by a Larger Bench and
\naccordingly by an order dated March 14, 2000, the matter was ordered to be
\nplaced before the President for constituting a Larger Bench.  As already
\nobserved earlier, the Larger Bench in (2000) 119 ELT 211 decided the
\nquestion in favour of assessee and against the Department.  Resultantly, the
\nappeals were allowed by holding that printed materials imported by the
\nCompany   could be said  to be “Books”    falling within Tariff  Heading
\n49.01  and were entitled to exemption as ‘Printed books’.\n<\/p>\n
\tIt was conceded by the Department before us is that no doubt in
\nParasrampuria Synthetics Ltd.,   the Larger Bench of CEGAT decided the
\nquestion of law in favour of assessee and against the Department, but the
\nDepartment had taken the mater further and this Court reversed the decision
\nof the Larger Bench in (2001) 9 SCC 74 : (2001) 123 ELT (SC).  It was,
\ntherefore, submitted that the decision of CEGAT impugned in these appeals
\ndeserves to be quashed and set aside by allowing the appeals of the
\nDepartment.  It was submitted that two appeals have been filed by the
\nDepartment for enhancement of penalty imposed by the Commissioner of
\nCustoms since the penalty was inadequate and required to be enhanced.  In
\nview of the fact, however, that CEGAT allowed the appeals of the assessee
\nand quashed the Order in Original passed by the Commissioner of Customs,
\nthe appeals filed by the Department were dismissed.   In the light of the
\ndecision of this Court in Parasrampuria Synthetics Ltd. the decision of
\nCEGAT deserves to be reversed.  In that case, both the appeals filed by the
\nDepartment for enhancement of penalty should be allowed.  In the
\nalternative, they may be remitted to CEGAT for fresh consideration on
\nmerits for passing an appropriate order in accordance with law.\n<\/p>\n
\tThe submission on behalf of the Company and Chairman-cum-
\nManaging Director and Director was that the decision of this Court in
\nParasrampuria Synthetics Ltd. does not lay down correct law.  It was
\nsubmitted that Designs, Drawings and Plans imported by the Company are
\ncovered under Chapter Heading 49.01 as they could be said to be ‘Books’
\nand  could not fall under sub-heading 4911.99.  CEGAT in several cases had
\ntaken a similar view. The Larger Bench also upheld the reasoning in and
\nconclusion arrived at in those cases.  It was also submitted that a similar
\npoint came for consideration before this Court in Scientific Engineering
\nHouse Ltd.  and this Court in the light of the provisions of the Income Tax
\nAct, 1961, held that drawings and designs would come within the term
\n‘book’ and hence, would be said to be ‘plant’.   It was also submitted that the
\nHigh Court of Gujarat in Elecon Engineering Ltd. considered the question
\nand decided in favour of the assessee.  The observations of the High Court of
\nGujarat had been approved by this Court in Scientific Engineering House
\nLtd.   The Division Bench of this Court in Parasrampuria Synthetics Ltd.
\nmisinterpreted and misapplied the ratio laid down in that case and
\nerroneously held that the decision in Scientific Engineering House Ltd.
\ndoes not support the Company.   On the contrary, the observations in that
\ncase supported the case of the Department.  It was urged by the learned
\ncounsel for the assessee that the decision of the Division Bench in
\nParasrampuria Synthetics Ltd.   is also not in conformity with the decision
\nof three Judge Bench in Associated Cement Companies Ltd. vs.
\nCommissioner of Customs,<\/a> (2001) 4 SCC 593.  It was, therefore, submitted
\nthat the appeals deserve to be dismissed.\n<\/p>\n
\tSo far as CEGAT is concerned, in our opinion, the learned counsel for
\nthe assessee is right in submitting that the point is finally concluded in
\nfavour of assessee and against the Department in Parasrampuria Synthetics
\nLtd.   The  Larger Bench observed that  in several cases, Drawings, Designs
\nand Plans were held to  be covered under Chapter  49 and would fall under
\nHeading 49.01 (Printed books, brochures, leaflets and similar printed matter
\nwhether or not in single sheets); 49.06  (Plans and drawing etc for
\narchitecture, engineering, industrial, commercial, topographical or similar
\npurposes, being originals drawn by hand; had-written texts; photographic
\nreproductions on sensitized paper and carbon copies of the foregoing); and
\n49.11 (other printed matter, including printed pictures and photographs) and
\nnot under 4911.99 (other).  The Larger Bench also noted that in some cases,
\na contrary view was taken.  But relying on the majority of the decisions, it
\nwas held that the relevant heading was 49.01 of Schedule I of the Act.\n<\/p>\n
\tNo doubt this Court in an appeal against the order passed by the
\nLarger Bench reversed the decision of CEGAT.   The question, however, is
\nwhether the order passed by a two Judge Bench in Parasrampuria Synthetics
\nLtd.  lays down  correct law on the point.\n<\/p>\n
\tNow, let us consider some decisions on this aspect.
\n\tIn Elecon Engineer Co. Ltd., the High Court Gujarat was called upon
\nto consider the question whether ‘drawings and patterns’ acquired by the
\nassessee from foreign company relating to ‘know-how’ which formed basis
\nof business of the assessee could be said to be “books” within the meaning
\nof sub-section (3) of Section 43 of the Income Tax Act, 1961 and hence,
\n“plant” as defined in the said sub-section and whether the assessee could
\nclaim depreciation on the said purchase?  The High Court noted that sub-
\nsection (3) of Section 43 expressly declared that “book” used for the purpose
\nof business or profession of the assessee was covered by the inclusive
\ndefinition of the word “plant”.  The question, however, was whether
\ndrawings and patterns could be said to be “book”?  The Court observed that
\nthe word “book” had not been defined in the Act.  It was not a term of art.  It
\nwas an ordinary English word of every day use and must, therefore, be
\nassigned its natural meaning as understood in the common parlance, subject,
\nof course, to the context in which it was used.  The Court stated;\n<\/p>\n
“We will first consider the question whether drawings and
\npatterns acquired by the assessee are “books”, for the
\ninclusive definition of the word “plant” in section 43 (3)
\nof the Act expressly declares that “books” used for the
\npurposes of the business or profession of the assessee,
\nthat is, used for the purpose of enabling the assessee to
\ncarry on his business or profession and earn income
\ntherefrom, are “plant” within the meaning of section 32.
\nNow, the word “book” has not been defined in the Act
\nand it is not a term of art.  It is an ordinary English word
\nof everyday use and it must, therefore, be assigned its
\nnatural meaning as understood in common parlance
\nsubject, of course, to the context in which it is used here.”\n<\/p>\n
\tIn popular sense, “book” means a collection of a number of leaves or
\nsheets of paper or of other substance, blank, written or printed, of any size,
\nshape and value, held together along one of the edges so as to form a
\nmaterial whole and protected on the front and back with a cover of more or
\nless durable material.  The Court also referred to dictionary meaning.  It was
\nobserved that one must refer not only to the physical, but also functional
\ncharacteristic of “book”.  It must be functionally useful for the purpose of
\nassessee’s business or profession.  To put it differently, it must be a tool of
\nhis trade  an article which must be part of the apparatus with which his
\nbusiness or profession was carried on.  It must have utility value enabling its
\nowner to pursue his business or profession with greater advantage.  It must,
\nthus, satisfy a dual test.  It must bear both physical and functional
\ncharacteristics of a book.  It must be a collection of a number of sheets of
\npaper or of other substance, having suitable size, shape and value, bound
\ntogether at one edge so as to form a material whole and protected on the
\nfront and back with covers of some kind and functionally useful to the
\nassessee for carrying on his business or profession.\n<\/p>\n
\tThe Court also referred to English decisions on the point.   A
\nreference may be made in this connection to a decision of Court of Chancery
\nin Pretyman v. Pretyman, (1931) 1 Ch 521.  The testator in that case had by
\nhis will inter alia bequeathed “all the pictures, prints, statues, sculptures,
\narticles of vertu books, furniture and plate” to his trustees.  The estate of the
\ntestator included 155 original manuscripts of the series of letters and papers
\nknown as Paston letters.  Those letters and papers were not in the form of
\nloose sheets included in portfolios or kept in a safe.  They were mounted, or
\ninlaid in sheets of paper and bound up in three volumes.  The question
\nbefore the Court was whether those three volumes could be said to be
\n“articles of vertu” or “book” within the meaning of the relevant statute.
\n\tReplying the question in affirmative, Maugham, J. stated;
\n\t“To my mind it is plain that a book is not
\nnecessarily a printed book. But in addition, according
\nto the ordinary meaning of the English word ‘book’.
\nThere are many books which are not necessarily the sort
\nof books which one finds in a library at all, and which
\nyet are books.  I might mention as an example the book
\nwhich I have before me, a judge’s notebook.  I do not
\nknow how that could be described otherwise than as a
\nbook.”\n<\/p>\n
\tReferring to earlier decisions, the Court concluded;
\n\t“In the present case I have come to the conclusion
\nthat these three volumes are books. The factors leading
\nme to that conclusion are these : The volumes are in
\nbook form; to the outward eye they look like books, and
\nin the ordinary course they can be, and are, handled like
\nbooks. Next, I observe that they can be used like books,
\nin the sense that, as one turns over the sheets, one can, if
\nable to decipher the handwriting, read the various letters
\nas a collection of letters bound up in the books.  I
\nobserve further that they are not detachable letters in the
\nordinary sense, but have been so inserted in the sheets
\nthat they are in substance permanent parts of the
\nvolumes, unless, indeed, they should be cut out or
\nremoved by some forcible effect.”\n<\/p>\n
\tA similar question came up for consideration before this Court in
\nScientific Engineering House Ltd. referred to above.  In that case, the
\nassessee entered into collaboration agreement for manufacture of scientific
\ninstruments.  The collaborator was to supply technical know-how by
\ndrawings, designs, charts, plants, etc.  The question was whether those
\ndocuments in the form of “documentation service” under the agreement
\ncould be said to be ‘book’ and ‘plant’ within the meaning of the Income Tax
\nAct and whether the assessee was entitled to claim depreciation?  The Court
\nconsidered two questions; viz. (i) whether the ‘documentation service’
\nagreed to be and actually rendered by the foreign collaborator to the assessee
\nwas incidental to other services as a result whereof the assessee acquired
\ntechnical know-how requisite for the purpose of manufacturing its products;
\nand (ii) whether the expenditure could be said to be of a capital nature
\nbrought into existence a depreciable asset?\n<\/p>\n
\tConsidering the provisions of Sections 32 and 43 of the Act, the Court
\nheld that the word ‘plant’ would include any article or object fixed or
\nmovable, live or dead, used by a businessman for carrying on his business
\nand it is not necessarily confined to an apparatus which is used for
\nmechanical operations or processes or is employed in mechanical or
\nindustrial business.\n<\/p>\n
\tThe Court quoted with approval the following passage of Lindley, L.J.
\nin Yarmouth v. France, (1887) 19 QBD 647:\n<\/p>\n
\t“There is no definition of ‘plant’ in the Act : but, in its
\nordinary sense, it includes whatever apparatus is used by
\na businessman for carrying on his business, – not his
\nstock-in-trade which he buys or makes for sale ; but all
\ngoods and chattels, fixed or movable, live or dead, which
\nhe keeps for permanent employment in his  business.”\n<\/p>\n
\tThe Court also referred to functional test  formulated by Lord Guest in
\nInland Revenue Commissioners v. Barclay Curle & Co. Ltd., (1970) 76 ITR
\n62 (HL):\n<\/p>\n
\t“In order to decide whether a particular subject is
\nan ‘apparatus’ it seems obvious that an inquiry has to be
\nmade as to what operation it performs.  The functional
\ntest is, therefore, essential at any rate as a preliminary.”\n<\/p>\n
\tThe Court then formulated the test thus;\n<\/p>\n
\t“Does the article fulfill the function of a plant in
\nthe assessee’s trading activity?  Is it a tool of his trade
\nwith which he carries on his business?  If the answer is
\nin the affirmative it will be a plant.”\n<\/p>\n
\tThe Court proceeded to observe that applying the said test, the
\ndrawings, designs, charts, plans, processing data and other literature
\ncomprised in the ‘documentation service’  specified in the agreement would
\nconstitute ‘book’ and hence ‘plant’ within the meaning of the Act.  The
\nCourt, therefore, held that it was clearly of the opinion that the capital asset
\nacquired by the assessee, namely, the technical know-how in the shape of
\ndrawings, designs, charts, plans, processing data and other literature fell
\nwithin the connotation ‘plant’ and, therefore, a depreciable asset.  The Court
\nreferred to Elecon Engineering Co. Ltd. and said;
\n\t“Counsel invited our attention to the decision in
\nCIT vs. Elecon Engg. Co. Ltd. where the Gujarat High
\ncourt has, after exhaustively reviewing the case law on
\nthe topic, held that drawings and patterns which
\nconstitute know-how and are fundamental to the
\nassessee’s manufacturing business are ‘plant’.   we
\nagree and approve the said view”.   (emphasis supplied)<\/p>\n
\tIt is, no doubt, true that in Parasrampuria Synthetics Ltd., a two Judge
\nBench of this Court reversed the decision of CEGAT and held that
\nDrawings, Designs and Plans imported by the assessee from Zimmer under
\nan agreement for transfer of technology for setting up a plant to manufacture
\nspecified goods could not be said to be ‘book’ and hence was not covered by
\nChapter Heading 49.01 nor exempted under notification of 1975.  It is also
\ntrue that the Court considered both the decisions, viz., Scientific Engineering
\nHouse  Ltd. decided by this Court and Elecon Engineering Co. Ltd. decided
\nby the High Court of Gujarat.\n<\/p>\n
\t Regarding Scientific Engineering House Ltd., a two Judge Bench
\nsaid;\n<\/p>\n
\t\t“While there is some factual divergence as noticed
\nabove but the factum of the drawings etc. not forming part
\nof a book within the exemption notification stands
\naccepted in Scientific Engg. as would be evident from the
\nemphasized portion in para 13 noticed above.  In this
\nview of the matter, the aforesaid decision of this Court in
\nScientific Engg. does not lend any assistance to the
\nassessee, rather runs counter to the respondent’s
\ncontentions. As can be seen from one of the volumes
\nproduced before us, it contains documents in loose sheets
\nmerely put up in a folder.  It has none of the
\ncharacteristics of a book known in the common trade
\nparlance.  At any rate, the principal interest in the goods is
\nrelated to transfer of technology to the assessee in the
\nform of drawings, designs and plans for setting up a plant
\nto manufacture polyster, polyster filament yarn and
\npolyester staple fibre.  Thus viewed from any angle, the
\ngoods imported by the assessee are not covered by
\nSl.No.10 but are covered by Sl. No. 15 of the said
\nexemption notification.”\n<\/p>\n
The Court proceeded to observe;\n<\/p>\n
  \t“The question thus arises as to whether articles
\nimported satisfy the requirement of Serial No.10 of the
\nnotification.  Incidentally, this Court in Scientific Engg.
\ncategorically posed a question as to whether apart from
\nthe physical form, the documents satisfy the functional
\ntest!  The basic issue thus would be the nature of articles
\nimported.  Now what these documents are : admittedly in
\nterms of the agreement between the parties, these
\ndocuments cannot be attributed to be technical know-how
\nin the shape of drawings, designs, plans and other
\nliterature: it is a literature or specification for a particular
\nplant to manufacture polyester, polyester filament yarn
\nand polyester staple fibre : even without adverting to the
\ngeneral trade parlance of the word “book” and its known
\nfeatures a plain look at the book itself denotes it to be an
\ninstallation and planning manual.  The documents though
\nloosely kept in a binder is known as Zimmer
\nDocumentation as regards the Fisher-Fosemount Systems.
\nIt is a technology transfer agreement which stands
\ndocumented in  a folder.  The heading itself records
\n“Installing CHIP Products and Application Software”.
\nThe heading itself thus indicative of not being a work of
\nart by an author  it is a record of scientific progress
\nachieved and this particular achievement is being
\ntransferred by way of transfer of technology agreement
\nbetween the two parties and thus cannot but be termed to
\nbe a “technical know-how in the shape of drawings,
\ndesigns, charts, plans and other literature”  these items
\nhave been ascribed to be a part of the plant for the
\npurposes of depreciation allowance in terms of Sections
\n32 and 43(3) of the Income Tax Act.  Merely by reason of
\nthe factum of certain writings on various sheets of paper,
\none cannot ascribe the documentation to be a “book”.
\nThe word “book” has not been defined in the Act but the
\n“book” in common acceptation is a literary composition
\nfrom which one may extend or advance his or her
\nknowledge and learning.”\n<\/p>\n
\tAs to Elecon Engineering Co. Ltd., it was stated;
\n\t“Incidentally, the decision of the High Court of Gujarat
\nin the case of CIT vs. Elecon Engg. Co. Ltd. has been
\nstrongly relied upon by the Tribunal and it has also been
\nrecorded in the order impugned that the decision was
\nsubsequently approved by this Court.  While it is true that
\nElecon Engg. stands approved by this Court but para 14 in
\nthe decision in Scientific Engg. would make the situation
\nclear enough to indicate that the same does not convey
\nwhat the learned Tribunal wanted to convey.”\n<\/p>\n
\tThe learned counsel for the assessee, however, is right in submitting
\nthat a Bench of two Judges proceeded on the basis of submission on behalf
\nof the Revenue by the learned Attorney General wherein he contended that a
\nbook must certain features.  This is clear if one reads paragraph 10 of the
\nReport, which reads thus;\n<\/p>\n
\t\t“Turning attention on to Serial No. 10, be it noted
\nthat in Chapter 49 “printed books” and “printed manuals”
\nincluding those in loose-leaf form with binder, have been
\nspecifically referred to as “nil” duty article.  It is in this
\ncontext that the learned Attorney-General in support of
\nthe appeal contended that in general trade parlance a book
\nis known by features like (i) a book has an author, (ii) a
\nbook has a publisher, (iii) a book is a priced publication,\n<\/p>\n
(iv) the book is available to all and sundry who pay for it,\n<\/p>\n
(v) the book does not have a memorandum of
\nunderstanding, (vi) there is no confidentiality about the
\nbook, (vii) a book has a subject to deal, with, (viii) the
\npages are serially numbered and neatly bound, and (iv)
\nlast but not the least, it should have ISBN Code i.e.
\nInternational Standard Book Number.”\n<\/p>\n
\tOur attention was also invited by the learned counsel to dictionary
\nmeaning of the word ‘Book’.\n<\/p>\n
\tIn the Penguin English Dictionary, it is stated;
\n\t“Book is a set of written, printed, or blank sheets bound
\ntogether into a volume.”\n<\/p>\n
\tThe Concise Oxford Dictionary, defines ‘book’ as “a written or
\nprinted work consisting of pages glued or sewn together along one side and
\nbound in covers; a main division of a literary work or of the Bible; a set of
\nrecords or accounts;  a book maker’s record of bets accepted and money paid
\nout; a set of tickets, stamps, matches, etc. bound together”\n<\/p>\n
\tAccording to the New Webster’s Dictionary,
\n\t‘Book’ means “A writing or document; a written or
\nprinted work of some length, as a treatise or other literary
\ncomposition, esp. on sheets fastened or bound together; a
\nvolume; cap. the Bible.  A libretto; a division of a literary
\nwork, esp. one of the larger divisions; a record of bets, as
\non a horse-race; any collection of sheets fastened or
\nbound together; a number of sheets bound together and
\nused for making entries, as of commercial transactions; a
\npile or package of leaves, as of tobacco; a trick at cards,
\nor a number of cards forming a set; bridge, six tricks
\ntaken by one side.”\n<\/p>\n
\tAccording to Words and Phrases (Permanent Edition), “A “book”,
\nin its popular sense, is understood to be a volume, bound or unbound,
\nwritten or printed.”\n<\/p>\n
\tIn our opinion, the counsel is right in submitting that when the
\nexpression ‘book’ is not defined in the Act, natural and ordinary meaning of
\nthe said expression must be kept in view.  According to him, nowhere it is
\nprovided that all the nine characteristics or ingredients as highlighted by the
\nlearned Attorney General in Parasrampuria Synthetics Ltd. and referred to
\nby this Court in paragraph 10 must be considered essential or sine qua non.
\nHe, therefore, submitted that a wrong test was applied by this Court in
\nParasrampuria Synthetics Ltd. and Scientific Engineering House Ltd. was
\nerroneously distinguished.  The proper way on the part of the Court was to
\nconsider the test laid down in Scientific Engineering House Ltd. and to come
\nto a conclusion whether on the facts and in the circumstances of the case,
\nDrawings, Designs and Plans in the case on hand could be said to be ‘book’.
\nBy not doing so, a clear error of law had been committed and the decision
\ndeserves to be overruled.\n<\/p>\n
\tIt was also submitted that so far as factual aspect is concerned,
\nCEGAT was right in holding that Drawings, Designs and Plans imported by
\nthe assessee were covered by Tariff Heading 49.01 and were also entitled to
\nexemption under notifications No. 107\/93-Cus and 38\/94-Cus.
\nAlternatively, it was submitted that if this Court is of the view that CEGAT
\nhas not entered into the said question in view of the Larger Bench decision,
\nthe matter may be remitted to CEGAT directing it to consider the case afresh
\nby applying correct test and to take an appropriate decision.\n<\/p>\n
 \tThe learned counsel for the Revenue submitted that Elecon Engineers
\nLtd. and Scientific Engineering Housing Ltd. were rendered in different
\ncontext.  The basic issue was  whether ‘books’ were covered by the entry
\n‘plant’ under the Income Tax Act.  Those decisions, therefore, have no
\nrelevance to the issue in question since the entries are different.  It was also
\nsubmitted that since the article in question was to be used by the assessee
\nand was prepared according to his requirement, it had no utility to others.
\nHence, it cannot be said to be a ‘book’ in general sense.  It was argued that
\nthis Court has considered the factual position in Parasrampuria Synthetics
\nLtd. and held that the article was not a book.  It would not, therefore, be
\nappropriate to hold otherwise in the present case.\n<\/p>\n
\tIn our opinion, all these questions have to be considered and decided
\nby the CEGAT in the fact-situation of the case in hand.  As already noted by
\nus, some of the tests applied in Parasrampuria Synthetics Ltd.  were not
\nrelevant and appropriate.  The CEGAT will now consider the ratio in
\nParasrampuria Synthetics Ltd. in the light of the observations made by us in
\nthis judgment and decide the issue raised in the instant case.\n<\/p>\n
\tThe matter could be looked at from another angle also.  As noted
\nearlier, HSN has dealt with the point and as per Explanatory Note, it would
\nfall under Chapter Heading 49.01.  If it is so, it would not be covered by sub-
\nheading 4911.99.\n<\/p>\n
\tIn this connection, we may refer to a three-Judge Bench decision of
\nthis Court in Collector of Central Excise, Shillong v. Wood Craft Products
\nLtd.<\/a> (1995) 3 SCC 454 : (1995) 77 ELT 23 (SC).  The Court, in that case,
\nconsidered the question whether ‘plywood’ was classifiable under sub-
\nheading 4408.90 or sub-heading 4410.90?  HSN Explanatory Notes was
\nconsidered by this Court and it was observed;\n<\/p>\n
\t“We are of the view that the Tribunal as well as the High
\nCourt fell into the error of overlooking the fact that the
\nstructure of the Central excise tariff is based on the
\ninternationally accepted nomenclature found in the HSN
\nand, therefore, any dispute relating to tariff classification
\nmust, as far as possible, be resolved with reference to the
\nnomenclature indicated by the HSN unless there be an
\nexpress different intention indicated by the Central Excise
\nTariff Act, 1985 itself.  The definition of a term in the ISI
\nGlossary, which has a different purpose, cannot in case of
\na conflict, override the clear indication of the meaning of
\nan identical expression in the same context in the HSN.
\nIn the HSN, block board is included within the meaning
\nof the expression “similar laminated wood” in the same
\ncontext of classification of block board.  Since the Central
\nExcise Tariff Act, 1985 is enacted on the basis and pattern
\nof the HSN, the same expression used in the Act must, as
\nfar as practicable, be construed to have the meaning
\nwhich is expressly given to it in the HSN when there is no
\nindication in the Indian tariff of a different intention.”\n<\/p>\n
\tThe ratio laid down in Wood Craft Products Ltd. was followed and
\nreiterated in Collector of Central Excise, Hyderabad v. Backelite Hylam
\nLtd.,<\/a> (1997) 10 SCC 350 : (1997) 91 ELT 13 (SC) and in Collector of
\nCustoms, Bombay v. Business Forms Ltd. Thr. O.L.<\/a> (2002) 142 ELT 18
\n(SC).  Hence, even that aspect has to be considered and kept in mind while
\ndeciding as to whether Drawings, Designs and Plans could or could not be
\nsaid to be ‘printed book’ covered by Chapter Heading 49.01, 49.06 or sub-
\nheading 4911.99?\n<\/p>\n
\tThere is still one more aspect which is relevant.  It cannot be disputed
\nand is not disputed before us and is also concluded by a decision of a three-
\nJudge Bench in Associated Cement Co. Ltd. that the basic heading is 49.01.
\nIt deals with “Printed books, brochures, leaflets and similar printed matter,
\nwhether or not in single sheets”.  49.11 covers “Other printed matter,
\nincluding printed pictures and photographs”.  Thus, specific or basic heading
\nis 49.01 and residual entry is 49.11.  Priority, therefore, has to be given to
\nthe main entry and not the residual entry.  According to the Company, the
\ncase is covered by the main entry under 49.01, and in that view of the
\nmatter, one cannot consider the residual entry 49.11.\n<\/p>\n
\tIn Indian Metals & Ferro Alloys Ltd., Cuttack v. Collector of Central
\nExcise, Bhubaneshwar,<\/a> 1991 Supp (1) SCC 125,   this Court held that
\nresiduary item can be referred to and such item can be applied only when
\ngoods are shown to be not falling under any other specific item.  If they are
\ncovered by a specific item, residuary item has no application.
\n\tThe Court stated;\n<\/p>\n
\t“One more aspect of the issue should be adverted to
\nbefore we conclude.  The assessee is relying upon a
\nspecific entry in the tariff schedule while the department
\nseeks to bring the goods to charge under the residuary
\nItem 68.  It is a settled principle that unless the
\ndepartment can establish that the goods in question can,
\nby no conceivable process of reasoning, be brought under
\nany of the specific items mentioned in the tariff, resort
\ncannot be had to the residuary item” [See also Bharat
\nForge & Press Industries v. Commissioner of Central
\nExcise,<\/a> (1990) 1 SCC 532 : (1990) 45 ELT 525 (sc)]<\/p>\n
\tIn our considered opinion, all these contentions raised by the assessee
\nhave to be dealt with and decided in the light of relevant statutory provisions
\nof the Act and the Rules as also on the basis of decided cases on the point.
\nAs CEGAT has disposed of all the appeals merely on the basis of Larger
\nbench decision in Parasrampuria Synthetics Ltd.  and has not considered
\nrival contentions on merits nor recorded findings thereon, it would be
\nappropriate and in the fitness of things to remit the matters to CEGAT, now
\nto Customs, Excise and Service Tax Appellate Tribunal (CESTAT) to decide
\nthem on all points in accordance with law in the light of observations made
\nin this judgment.\n<\/p>\n
\tFor the foregoing reasons, all the appeals are allowed.  The order
\npassed by CEGAT is hereby set aside and the matter is remitted to CESTAT
\nfor reconsideration and for passing fresh order in accordance with law.  In
\nthe facts and circumstances of the case, however, there shall be no order as
\nto costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commissioner Of Customs … vs M\/S. Gujarat Perstorp … on 5 August, 2005 Author: C Thakker Bench: Ruma Pal, Arijit Pasayat, C.K. Thakker CASE NO.: Appeal (civil) 8568-8569 of 2001 PETITIONER: Commissioner of Customs (General), N. Delhi RESPONDENT: M\/s. Gujarat Perstorp Electronics Ltd. DATE OF JUDGMENT: 05\/08\/2005 BENCH: Ruma Pal,Arijit Pasayat […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-9065","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommissioner Of Customs ... vs M\/S. 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