Decided on July 26,1991



HARISH CHANDER,VICE PRESIDENT - (1.) M /s. East West Exporters, 157, St. Patricks Complex, Brigade Road, Bangalore -25, has filed an appeal being aggrieved from the order passed by Collector of Customs (Appeals), Madras.
(2.) BRIEFLY the facts of the case are that M/s. East West Exporters, Bangalore, had imported Max HD -3R Staplers (Industrial use packaging machine). The same was assessed duty under Heading 84.51/55(1) CTA and under 33(D) CET. The appellant had claimed the assessment before the Assistant Collector under Heading 84.32 with additional duty under Tariff Item 68. The appellant had claimed assessment under this Heading on the basis of appellate decision in C3/514/83 dated 26th March, 1983 passed by the Collector (Appeals) and subsequent assessment of the identical consignments. A notice dated 25th October, 1983 was issued to the appellants to explain their case intimating that the proposal of the Revenue for assessing the stapler type HD -3R under Heading 84.51/55(1) with additional duty under Item 33(D) CET. In their reply dated 2nd November, 1983 the importers stated that they want a speaking order. In the catalogue for type HD -3R it has been mentioned - a new desk type stapler. One -touch open system is used for easy loading of staple. Staple use - Max No. 3(24/6) Stapling capacity - 30 sheets of good quality paper. Possible for use as a tacker with protective base. The Chapter Heading No. 84.32 under which the appellants claimed staplers HD -3R as classifiable reads - "Book binding machinery, including book -sewing machines". The Assistant Collector was of the view that stapling machine was neither a book stitching machine nor a box making machine. The catalogue mentioned the same as desk type stapler suggesting its use in office. The Assistant Collector observed that type HD -3R staplers was of a kind used to fix documents together. It was an office machine within the meaning of Chapter Heading 84.54 CCN corresponding to 84.51/55(1) CTA. It is used by the importers for making card board boxes, i.e., for a purpose not intended or designed will not take it away from Chapter Heading 84.51/55(1) CTA. Being not satisfied from the orders passed by the Assistant Collector, appeals were filed before the Collector (Appeals). The Collector (Appeals) confirmed the findings of the Assistant Collector and had also observed that he had held that the main goods could not be considered as a packing machine and to packing to have the benefit of import under OGL, he had held that the import was not covered under OGL and for classification, he had held that on the basis of the Max catalogue as well as sample inspected, it could not be treated as a machine for making cartons to give the benefit of re -assessment and had held that the classification as office machine, as assessed by the Assistant Collector, was correct and had upheld its findings and had rejected the appellants claim for re -assessment. Being aggrieved from the aforesaid order, the appellant has come in appeal before the Tribunal.
(3.) SHRI K.L. Jain, Partner of the appellant firm, has appeared. He has reiterated the facts. He pleaded that the Revenue had assessed the same under Heading 84.51/55(1) CTA whereas the appellant has claimed the assessment under Heading 84.32. Shri K.L. Jain referred to Smt. Varalaxmi Rajamanickam's order -in -appeal No. C -III/514/83 dated 26th March, 1983, where the Collector (Appeals) had allowed the appeal. He referred to a decision in the case of J.K. Synthetics v. Union of India, reported in 1981 ECR 333 -D. He referred to para No. 17. He also referred to the Assistant Collector's order passed in November, 1983 and read page 8 of the Collector (Appeals) order. He pleaded that in case the appellants plea is not accepted, alternatively it may be assessed under Heading No. 82.05. He has pleaded for the acceptance of the appeal. Shri M.K. Sohal, learned JDR, who has appeared on behalf of the respon -dent, relied on the Order -in -Original and the Order -in -Appeal. He referred to the description given under Heading 84.51/55(1) which is office machines, sub -heading other machines "Stapling machines". He referred to the description as given in the invoice as stapling machines. Shri Sohal argued that Heading 84.32 is a generic entry. He argued that the Collector (Appeals) has looked into the matter correctly. He pleaded that when there is a specific entry, there is no question of resorting to a generic entry and the specific entry is 84.51/55(1). Shri Sohal argued that the stapling machines imported cannot be used for books and the design of the machine catalogue are different. He referred to In -terpretary Rule 3(A) which makes it clear that heading which is more specific that heading resorted to. He also referred to Interpretary Rule 3(C). He referred to catalogue HD -3R which appears on page 26 of the paper -book. Shri Sohal pleaded that there is no infirmity in the order passed by the Collector of Customs (Appeals), and as such, the appeal should be dismissed.;

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