TMI Blog1979 (7) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... ta Processing Equipements have been imported by the Petitioners under import licences on "AS IS Condition" for the purposes of salvaging such parts thereof as the still usable for the purpose of being used in the Petitioners manufacturing programme in India. Since the imported disused Data Processing Machines or equipment are not in working condition, they are also known as "AS IS Machines". It is the case of the Petitioners that such machines cannot be repaired or sold or hired in India, and on their import in India the said machines are dis-assembled and all their salvageable parts are used for manufacture of new machines, in India. The Petitioner's claim that when such machines are imported, they cannot perform any function at all, and are not saleable and never sold in India. 3. Previously sometime in the year 1966, AS IS Machines were imported in India and a question arose as regards the rate of duties claimed thereon. The dispute was carried in revision right upto the Government of India, and as order was passed on January 3, 1969, whereby it was held that the AS IS Machines cannot be valued on the formula adopted by the Custom House, namely the new cost less depreciation b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S Data Processing Machines' imported under the licence dated May 12, 1970, and which arrived in Bombay on June 23, 1970. By this letter, the Petitioners pointed out that the countervailing duty is not leviable in respect of the "AS IS Machines", since they cannot be said to be complete machines. The letter further quotes the earlier order passed by the Government of India on January 3, 1969, and it was pointed out that the "AS IS Machines" imported from abroad have already undergone their useful period of working life. The Petitioners requested the Collector of Customs to permit clearance of consignment without payment of countervailing duty. The request made by the Petitioners was turned down and the Customs authorities collected the countervailing duty on the said consignment. The Petitioners carried an appeal before the Assistant Collector of Customs. But the appeal was dismissed by order dated August 31, 1970. The Petitioners further carried a revision application before the Government of India but the same also ended in dismissal by order dated October 1, 1973. The revisional authority took the view that the countervailing duty in required in respect of the `Data Processing AS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is the claim of the Respondents that the machines so imported, though old or used or temporarily not in working condition, still they never lost their identity as Data Processing Machines. According to the Respondents, the Petitioners are bound by their declaration of description of goods in the bills of entries and it is not open for them now to plead that the machines imported are not really machines and are not liable to countervailing duty. With reference to the previous decision of the Government of India, it is contended that the same relates to the valuation of goods and not classification. In view of these rival contentions, the crucial point for determination is whether Data Processing Machines imported by the Petitioners are machines and are liable to countervailing duty. 8. Before one adverts to the various aspects pointed out by the learned Counsel, it is necessary to state that the burden to establish that a relevant entry is applicable to the import by the Petitioners is on the Revenue and this position which is well settled was not seriously disputed on behalf of the Respondents. The Petitioners have made averments in the Petition to the effect the "AS IS Machin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners wanted to fix the value by adding 73% to the ICBP price, as was done earlier. But the Customs authorities fixed the valuation by adding 140% to the ICBP price, as held by the Government of India, by its order dated January 3, 1969. This fact, undoubtedly indicates that on the date of entry of the consignment for home consumption, the Customs authorities did not treat the consignment as machines and now it would not be proper to shut out the Petitioners by holding, that their declaration in the Bills of entries of consignment as machinery coming under Item No. 72(b) of the Indian Customs Tariff is conclusive. 9. Mr. Joshi, the learned Counsel appearing on behalf of the Respondents then contended that the "AS IS Machines" which were imported had never lost their identity. It is true that the machines which were imported were not dis-assembled, but were imported as a unit. In fact, the import was for the purpose of dis-assembling and salvaging the useful parts to be used while manufacturing new machines in India. The mere fact that the identity of the Data Processing Machines was never lost is not sufficient to conclude that the consignment was machines and liable to countervai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... once the Government of India had given a finding, then it is binding upon the authorities unless some other material is brought to the attention of the authorities to take a contrary view. 11. Mr. Joshi appearing on behalf of the Respondents, very strenuously contended that the decision given on January 3, 1969 was in connection with the valuation under Section 14(1)(a) of the Customs Act, 1962, and the same principle cannot be imported while determining the liability for countervailing duty. I am not impressed by this submission. The nature of the consignment of "AS IS Machines" was for consideration before the revision authority, and the finding thereon is binding on the Government in subsequent proceedings. The mere fact that the said order was in connection with the valuation is not sufficient answer to the claim of the Petitioners that the nature of "AS IS Machines" was determined. In my judgment, the authorities below were clearly in error in holding that "AS IS Machines" imported by the Petitioners were office machines and would attract Item 33-D of the First Schedule to the Excise Act, for the payment of countervailing duty. 12. In view of this finding, it is really not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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