TMI Blog2008 (4) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the First Schedule to the Central Excise Tariff Act, at concessional rate of duty from 8.1.2004 to 8.7.2004 and at 'nil' rate of duty from 9.7.2004 in terms of Notification No. 6/2002-CE dated 1.3.2002 (as amended). As per the entry at Sl. No. 261 in the Table annexed to the above Notification (as amended), computers of Heading 84.71 were chargeable to concessional rate of duty or to 'nil' rate of duty, as the case may be, during the period of dispute. In the Notification as amended on 9.7.2004, the term 'computer' was explained as under:- "Explanation:- For the purposes of this exemption, 'computer' shall include central processing unit (CPU) cleared separately; or CPU with monitor, mouse and key board, cleared together as a set; but shall not include input or output devices or accessories such as monitor, key board, mouse, modem, uninterrupted power supply system, or web camera cleared separately." In the impugned order, learned Commissioner found that (a) the subject goods were being sold as 'kiosks' and not as computers or computer peripherals; (b) special functional units such as Coin Validator, MICR (Magnetic Ink Character Reader), Bar Code Reader, Touch Screen, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and mouse were found in a drawer provided with a lock. We have also seen the counsel himself operating the machine by touching and moving his finger on the screen of the monitor. Undisputedly, any user could operate the kiosk in that manner. 4. The appellants state that their kiosk can receive, process, store and deliver data in the form of digital signals. The kiosk is an ADP machine, along with such accessories (Coin Validator, MICR etc.) as required by customer, housed in a metal sheet casing. It has a touch-screen monitor instead of a normal monitor. Input signals are received through human touch in the screen of the monitor itself, which are converted into digital signals and transmitted to CPU for processing. By directly receiving input data, the touch-screen monitor acts as an input unit and, by converting the signals provided by the CPU into a visual display, the monitor also acts as an output unit. Thus the kiosk houses input, processing/storing and output units as in a computer. A keyboard and mouse have also been provided to be used for change of programmes. Learned counsel has narrated these features of the kiosk and has submitted that the machine is nothing but a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the respective specific functions. But, we find that, for the above Note to apply, the specific function must be something other than data processing. Learned Commissioner himself has classified the kiosks as ADP machines under Heading 84.71 acknowledging their data processing and allied functions and the Revenue has not challenged the same. Therefore the SDR cannot be heard to argue as above. The short question before us is whether the ADP machines of Heading 84.71 can be called 'computers'. The Central Board of Excise Customs called them 'computers' long ago vide Circular No. 454/20/99-CX dated 12.4.1999. 7. We find that the kiosk in question answers the features of computer given in the dictionary cited by SDR. The dictionary provides the following information on 'computer';- " Computer: A device by which data, represented in an appropriate form, can be manipulated in such a way as to produce a solution to some problem. It is able to perform a substantial amount of computation with little or no human assistance. In general when the word computer is used by itself it refers to a digital computer. The other basic form of computer is the ANALOG COMPUTER, which is far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted text, graphs, displays, etc.) or into coded data for further use (processing, control etc.) The aforesaid main components of a digital computer are demonstrably present in the kiosk manufactured and cleared by the assessee. The touch-screen of the monitor in the kiosk has been shown to be the input unit for an ordinary user. (For a technician to change programme, the input device includes keyboard and mouse also). The monitor acts as output unit also. HSN Notes also say that input and output units may be combined in one single unit. That the kiosk contains a central processing unit (CPU) capable of storing and processing data is also a fact recognized by the Commissioner, who has accepted the factual position that an ADP machine is housed in the kiosk. We have found this machine to be a customized version of computer. In this context, it is pertinent to recollect that CBEC had noted long ago (Circular No. 454/20/99-CX ibid) that Heading No. 84.71 of the CETA Schedule described computers as ADP machines. In the impugned order, learned Commissioner has not disclosed any rationale underlying his proposition that "………… all ADP machines are not computers". 8. The appellants' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lore and M. Tech. from I.I.T., Kharagpur) and handling procurement of IT-related products for the Govt. of Tamilnadu, he also stated that the kiosk was basically a computer. He reiterated this fact in cross-examination also. It was in the context of comparing its structural and operational features with those of a computer (desktop) known to the common man that the specialist stated that the kiosk was different from a computer in construction, configuration and performance. The dictionary referred to by SDR also says that computers range widely in performance, size and cost. In our assessment, the ELCOT expert did not mean to say that the kiosk did not house a computer as understood in technological parlance. It is common knowledge that information technology is a fast-developing phenomenon and the commoners in our country are yet to keep pace with it. Common parlance is, therefore, likely to lag behind technological parlance. Those associated with the technology, manufacture and marketing of the kiosks - like the appellants and the ELCOT functionary will identify these machines today as computers customized for special purposes, but the laymen may take some more time to do so. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by Rajiv Gandhi Shiksha Mission was also produced before the Commissioner. This certificate also stated that they were using the kiosks supplied by the appellants, in rural and urban schools. Both these certificates certified the kiosks to be 'computers with add-on features'. This evidence produced by the assessee, however, was rejected by the Commissioner without stating valid reason. 12. Another reason stated by the Commissioner for deciding against the assessee is that the price of a kiosk was much higher than that of a normal computer (desktop) and hence the kiosk would not be treated as a computer. We are surprised at this reasoning. Would the Commissioner treat laptops, palmtops etc. [which are much more expensive than desktops] not to be computers? The dictionary produced by learned SDR, itself, says that computers range widely in performance, costs etc. Learned Commissioner has also reasoned that, as the appellants called their machine 'kiosk' and not computer, it cannot be treated as computer. In this regard also, it would suffice to say that, if an ADP machine commonly called 'laptop' or 'notebook' can be accepted as a computer in generic sense, a kiosk can a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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