Decided on July 17,1991



P.C. Jain, Member (T) - (1.) SINCE a common question of classification of automatic plate processor is involved in both the cases, a common order is being passed. For the sake of convenience facts in the case of the 1st appellants namely M/s. India Packaging Products are being dealt with in the impugned order.
(2.) QUESTION involved in the first appeal is the classification of automatic flexographic plate processor with automatic "After exposure unit" and photopolymer plate and UV Lamp. The appellants herein have claimed classification under Tariff Heading (T.H.) 84.35 CTA whereas the department has assessed it under T.H. 90.10 CTA, 1975. The Assistant Collector, who examined the refund claim of the appellants and the classification contended by the appellants, observed as follows : - "The claimants have submitted the write -up and leaflet showing the function of the Automatic Flexographic plate processor with the accessories. The polymer plate is inserted into the machine with the required negative and is exposed to the ultra violet rays. The exposed photo polymer plate is washed within the machine in Isopropyl alcohol and the block is washed by means of a brush. This machine is similar to the plate exposure and wash out unit. The term photography is defined as the process or art of reproducing images of objects on sensitized surfaces by chemical action of light or other forms of radiant energy such as x -rays, ultra -violet rays. Photographic apparatus for preparing printing plates were excluded from the scope of Heading 84.34 as they are specifically covered by the description of relevant Heading 90 vide Explanatory Notes page 1283. Explanatory Notes on page 1554 under Heading 90.10 also mentioned photocopying machines which worked by exposure to ultra -violet rays." 2.1 On appeal, before the Collector of Customs (Appeals), Madras, the appellants herein did not succeed. The Collector (Appeals) held that the photographic apparatus, as has been imported, for making printing blocks were excluded from Chapter Heading 84.34 vide Explanatory Notes to CCCN at page 1283. He also relied on the details, description and principle of working of photocopying apparatus, as given in the Explanatory Notes to CCCN, under Heading 90.10.
(3.) LEARNED advocate for the appellants, Shri Madhav Rao, has urged that the plate processing machine is a unit meant exclusively for preparing printing blocks to be used on photographic printing machines. Its use is nowhere else except in the printing industry. No photocopying function is performed. It is not a machine of a kind used in photographic or cinematographic laboratories. The machine has no photocopying capacity. In photocopying it was urged, the object is photoed and reproduced as such. On the contrary, the photo making is completed in a different operation and only the negative is inserted in the machine. It is the image in the negative which is sought to be impressed on the plate and this does not involve any photo copying as generally understood in trade and commercial parlance. It was also emphasised that in any photocopying apparatus incorporating optical system, the optical image of the original is projected to light sensitive circle and a developer. In any case, unless the original is brought into contact with the sensitive surface, there is no photocopying. It has, therefore, been urged by the learned advocate for the appellants that the correct classification would be under T.H. 84.34. Shri M.K. Sohal, learned JDR, on the other hand, relying on the CCCN Explanatory Notes under T.H. 84.34 has stated that photo processors are specifically excluded from the said T.H. 84.34. In the instant case, he has urged that contact is there with the plate. CCCN Explanatory Notes, according to the learned JDR, is an important aid to interpretation of the CTA which is modelled on the CCCN. As regards the argument that the T.H. 90.10, speaks of a laboratory, learned JDR submitted that the word 'laboratory' occurring therein has to be understood in the sense of 'studio' processing photographic films and the like. He has further submitted that all printing presses are not equipped with such photographic apparatus. There are photographic establishments which cater to printing industry. Therefore, such photographic machines which are used in such photographic establishments should be classified under T.H. 90.10. Shri Sohal has also given a brief resume of the case law available on the subject in a tabular form which is reproduced below: - s. CEGAT'S A.No. Name of the Appellant Name of the Respondent No. ORDER No. 1. 243/90 785/83 Printasia Corpn. C.C. Bombay 13 -7 -1989 2. 452/89 -B2 53/84 Thomson Press C.C. Bombay 19 -9 -1989 3. 101/90 -B2 2258/83 Vinand Block Makers C.C. Bombay 1 -2 -1990 4. 227/90 -B2 2372/82 C.C. Calcutta Anand Bazar Patrika 2 -4 -1990 5. 289/90 -B2 309/84 -B2 C.C. N. Delhi Indo Swiss Trading 21 -5 -1990 6. 285 -287/90 -B2 1557/82, C.C. Madras Vice Indian Express. 15 -6 -1990 1177, Versa 1178/84 Classification by the REMARKS Party AC Coll (A) CEGAT 84.34 90.10 90.10 90.10 Yesitani Brand Automatic Plate Processor NT -A2 84.34 90.10 90.10 90.10 Flip Top Maker 84.34 90.10 90.10 90.10 Plate Maker M2 A2 as per Printasia 1989 (43) ELT 574 84.34 90.10 84.34 84.34 Semi -Automatic Plate making machine 84.34 90.10 84.34 84.34 Aquaquick Special Photo Polymer Plate Processor 83.34 90.10 84.34 84.34 As per 1989 (44) ELT 488, 1985 (19) ELT 415 It appears from the various decisions, as submitted by Shri Sohal that there is a conflict of opinion amongst various Benches of the Tribunal so far as the plate processor or plate processing machine is concerned. 4.1 In his rejoinder Shri Madhav Rao, learned advocate for the appellants, states that CCCN is only persuasive in its value and is not binding. For this proposition he relies on 1983 (1) ETR 199 1 Should be 1983 (1) ETR 198 Regarding the Tribunal's decision in Printasia, mentioned supra, the learned advocate for the appellants has submitted that photographic principle may be there in the machine but it is not used in photographic establishment and therefore, T.H. 90.10 would not be an appropriate classification for the product. ;

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