TaxTMI 
TaxTMI 
2000 (8) TMI 415
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....eneral of Technical Development seeking clarification whether Risograph Printers were importable under OGL or Non OGL Capital goods import; that Dy. Chief Controller of Import and Export, under letter dated 4-10-1989 informed M/s. HCL Ltd. that the Risograph Printer was covered by the entry at Sl. No. 2(8) of Appendix-I Part B of the Import-Export Policy, 1988-91; that said Sl. No. 2(8) reads as "Four Colour and above form colour sheet fed offset printing machine" and Appendix-I Part-B contained the list of Capital Goods allowed under OGL that the opinion rendered by DGTD through the final authority CCI & E is binding on the Customs Authorities. Reliance was placed on the decision in the case of Maya Enterprises v. CCE, Kandla, 1994 (71) E.L.T. 817 (T) and M.J. Export Ltd. v. CEGAT, 1962 (60) E.L.T. 161 (S.C.) wherein reference has been made to the binding effect of the opinion of the Chief Controller of Imports and Exports derived from Para 24(1) of the Import Policy (1988-91). He also referred to the decision in the case of GEM Electro Mechanical Pvt. Ltd v. C.C., Calcutta, 1997 (93) E.L.T. 141 (T) wherein it was held that certificate given by the competent authorities cannot be ....
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.... process of Master making is not covered within the description of stencil duplicator. He further mentioned that demostration was made on the machine itself and even a print of the picture of Lord Ganesha was taken; that impugned machine is only floor model and it is recommended not to be put on a table or a desk because of its high speed, heavy duty (weight 94 kg) and sturdy printing machines. 4. The ld. Advocate specially referred to para 5 of the show-cause-notice wherein it was mentioned that Printing being the principal function of Risograph, it is covered under Heading 8472.10 as office duplicating machine as it uses stencil and ink for printing and in view of Note 3 to Section XVI of the Customs Tariff; that reliance was also placed on HSN Explanatory Notes according to which machines for cutting stencils or embossing sheets of metal, plastics, etc.; for use on duplicators are covered under Heading 84.72. The ld Advocate contended that once the Revenue holds that the principal function is 'printing' impugned machine is to be treated as printing machine and classified as such; that further Note 3 in no manner enumerates the process involved in the function; it categor....
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....s function of printing; that the allegation in notice was that the principal function of the machine in question was 'duplicating' whereas in the impugned order it is concluded that main function is 'printing' which is beyond the show-cause-notice; that again it was proposed to classify the machine under sub-heading 8472.90 in show-cause notice but the Collector decides it as a duplicating machine under sub-heading 8472.10. Finally, he submitted that if there are two views possible, assessee should be given benefit of doubt and the opinion favourable to it should be given effect to as held in Poulson And Mathen v. CCE, 1997 (90) E.L.T. 264 (S.C.); that penalty of Rs. 26 lakhs, in a case where value of goods involved is only Rs. 38 lakhs, is very harsh, particularly when the Department itself had been clearing such goods as printing machine; that redemption fine of Rs. 5 lakhs is also very high and there is no material on record that margin of profit is to that extent. 5. Countering the arguments, Shri A.K. Jain, ld D.R., submitted that the impugned goods are not at all printing machines; that according to the 'Operation Guide', "the Risograph's many feature can help make it....
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.... the Customs Authorities have to consider all the aspects and arrive at their own conclusion. 6. Regarding the certificates produced by the Appellants, the ld. DR mentioned that they have not brought on record the question referred to by them to these Organisations for soliciting their certificates; that further the reference has been made to the offices which supports the case of the Department that the impugned product is an Office Equipment. He also contended that if the impugned machine is capable of doing printing originally, there should be some such machanism available in the machine; that no such machanism has been pointed out by the Appellants; that the "Ganesha" picture might have been reproduced from the memory. The ld. DR mentioned that the Collector has given his specific findings as to why the impugned product is to be classified under Heading 84.72 CTA and he reiteriates them. He also submitted that the classification adopted by Exporter is not binding on Indian Customs. 7. In reply, the ld. Advocate submitted that the CCI & E had given reasons by giving criterion in its letter; that the classification issued by them was well reasoned classification a....