TMI Blog2013 (3) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of ‘old & used digital multifunctional print and copier machines’ are incorrect - Decided in favor of assessee. - C/2477-2488/2010 - 405-416/2011 - Dated:- 27-6-2011 - Shri M.V. Ravindran and B.S.V. Murthy, JJ. Shri Dr. Samir Chakroborthy, Sr. Advocate, Hasmukh Kundalia, G. Shivadas, N. Viswanathan and P.A. Augustin, Advocates, for the Appellant. Shri Harish Kumar, SDR, for the Respondent. ORDER All these appeals are directed against the Order-in-Appeal No. 71 to 81/2010, dated 31-8-2010 and No. 82 83/2010, dated 31-8-2010. Since the issues involved in all these appeals are identical, they are being disposed of by a common order. 2. The relevant facts that arise for consideration are that all the appellants herein filed Bills of Entry for clearance of Old used Digital Multifunctional print and copier machines along with accessories attachments and also used analog copier machines with accessories and attachments. The adjudicating authority was not convinced with the details and hence directed the appellants to give information required for identification of the goods and also services of independent Chartered Engineer M/s. SGS India Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thereunder either by Revenue or by the assessee or by judicial decisions. (c) It is the submission that in the year 2007, the Customs Tariff was amended by Notification No. 137/2006-Cus. (N.T.), dated 29-12-2006 w.e.f. 1-1-2007, in consequence thereof, sub-heading No. 8443 of the Customs Tariff was further split into new sub-headings like 8443 31 00, 8443 39 10, 8443 39 30 and 8443 39 40 were inserted and Tariff Heading No. 9009 was deleted. It is the submission that due to such re-alignment of the Customs Tariff w.e.f. 1-1-2007, the imported goods became classifiable under specific tariff sub-heading No. 8443 31 00 instead of under Chapter 84.71 and photocopiers on the other hand became classifiable under sub-headings No. 8443 39 30/8443 39 40. (d) It is the submission that the multifunctional machines like the imported goods are not and cannot be said to be photocopier machines as envisaged under para 2.17 of FTP or photocopying apparatus under Customs Tariff; they were and are recognized as distinct and separate category of goods classifiable under different tariff sub-headings. It is the submission that even Central Excise Tariff recognizes this position. (e) It is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of performing two or more functions either in standalone mode or after being connected to HDD, RAM etc. (g) It is the submission that explanatory notes to HSN also identifies these machines as separate and distinct than photocopier and apparatus. It is the submission that both the lower authorities did not appreciate the product literature published by the manufacturers of such imported goods which clearly demonstrates that these goods are only photocopiers per se. It is the submission that the reliance placed by the ld. Commissioner (Appeals) on the judgment of Hon ble High Court of Kerala in the case of Atul Commodities Pvt. Ltd. v. C.C., Cochin [2006 (202) E.L.T. 392 (Ker.)] is misplaced as the said judgment has been upturned by the Hon ble Apex Court [2009 (235) E.L.T. 385 (S.C.)] and has restored the Larger Bench decision of the Tribunal in Atul Commodities Pvt. Ltd. case [2005 (184) E.L.T. 135 (Tribunal-LB)]. It is the submission that the ld. Commissioner (Appeals) has sought to rely upon the Miscellaneous Order of the Chennai Bench in the case of Unitech Enterprises v. C.C. [2010 (258) E.L.T. 145 (T)] to hold that digital photocopier machine was covered by the restrictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confiscation of the goods i.e. digital multifunction print copier machines with accessories and attachments whether would be liable for confiscation as having been imported without license as envisaged in para No. 2.17 of the FTP and the Handbook of Procedures or otherwise. 6.2 In the factual matrix, the appellant had imported two types of machines in these appeals. The dispute in these appeals is only limited to used digital multifunctional print copier machines and our findings are restricted to these imported goods only. 6.3 The lower authorities have directed the appellants to get the goods examined by the Chartered Engineer which was done by appointing M/s. SGS India Pvt. Ltd. for doing the job. The said Chartered Engineer in their report at page No. 2 of all the appellants had indicated as hereunder :- (1) .. (2) INSPECTION RESULTS (ELABORATE ABOUT IDENTIFICATION W.R.T. THE DOCUMENTS PHYSICAL CONDITION RECONDITIONING DETAILS) 2.1 The Description of the digital multifunctional print and coping machines are verified and found matching with the documents. 2.2 The Make, Model, type (whether digital or Analogue) and Function (whether single or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... storage devices in standalone mode or capable of connecting to ADPS or network would also be covered for importation against a license. 6.6 It is also seen from the factual matrix, that the Chartered Engineer who were appointed, have also clearly indicated that the imported goods in question are digital multifunctional print and copier machines as per the inspection report reproduced in para 6.3 of this order; if that be so we find that the said machines cannot be called as Photocopier machines as photocopier machines per se, have been specifically identifiable as photocopier machines in the explanatory notes to HSN, which we have referred as there were no other corresponding notes in Customs Tariff to come to a conclusion. We find that explanatory notes to HSN under sub-heading 84.43 reads as under :- (II) OTHER PRINTERS, COPYING MACHINES AND FACSIMILE MACHINES, WHETHER OR NOT COMBINED This group covers : (A) Printers. This group includes apparatus for the printing of text, character or images on print media, other than those that are described in Part (I) above. These apparatus accept data from various sources (e.g., automatic data processing machines, flatbed desktop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss). In the direct process the optical image is projected onto a substrate (usually of paper) coated with, for example, zinc oxide or anthracene, charged with static electricity. After the latent image has been developed by means of a powdered dye, it is fixed to the substrate by heat treatment. In the indirect process, the optical image is projected onto a drum (or plate) coated with selenium or other semiconducting substance charged with static electricity. After the latent image has been developed by means of a powdered dye, it is transferred onto ordinary paper by applying an electrostatic field and fixed to the paper by heat treatment. (b) Apparatus using chemical emulsion coatings in which the photosensitive surface consists of an emulsion usually containing silver salts or diazo compounds (the latter being designed for exposure to light with a high ultraviolet content). The developing and printing processes vary according to the nature of the emulsion and the type of apparatus (wet or dry developers heat treatment, ammonia vapour, transfer techniques, etc.). This group also includes contact type photocopying apparatus and thermo-copying apparatus. (C) Facsimile mac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Xerox XD155df model. This clearly shows that the printing function emerges as the principal function and gives the Multi-Functional Machines its essential character. Having such a nature, it also clearly meets the three-fold requirement of Chapter Note 5(B), as it is to be used principally in ADPM, it is connectable to the Central Processing Unit, and it is able to accept data in a form (codes or signals) which can be used by the system. Further, there would be no application of Chapter Note 5(E) as correctly pointed out by the learned counsel for the appellants, as the Multi-Functional Machines are presented independently. Moreover, since predominant components are relating to printing function. Chapter Note 5(D) also becomes relevant which includes printers under Heading 84.71. We are also satisfied with the contention of the appellants that based on the nature of the functions they perform, the Multi-Functional Machines would serve as input and output devices of an ADPM (computer) and thus serve as unit of an ADPM, which on a reading of Chapter Note 5(C), clearly classifies them as falling under Heading 84.71.60 of the Act. 14. We are not in agreement with the submission m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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