2004 (97) ECC 410 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

West Zonal Bench -- Mumbai

Ms. Jyoti Balasundaram, Member (J) and Moheb Ali M., Member (T)

Rainbow Ink & Varnish Mfg. Co. Ltd.

Versus

Commissioner of Customs, Mumbai

Appeal No. C/771/1998-Bom

[Arising out of Order-in-Appeal 34/98 AP (CL-AIR) dated 30.4.1998, passed by Commissioner of Customs (Appeals), Mumbai]

Order No. A/572/WZB/2004-C-II, dt. 9.7.2004, Certified on 6.8.2004

Classification (Customs)

Printability Tester AIC 2-5 -- Import of Goods were cleared the same on payment of duty @ 60% + 45% + CVD 15% under Customs Tariff Heading 9031.90 and subsequently claimed refund on the ground that the goods attracted duty @ 40% + nil + CVD 15% under Customs Tariff Heading 9024.80 read with Notification 158/88-Cus dated 13.5.1998. The Commissioner (Appeals) has discussed in detail the working of the imported item and its functions and the catalogue before him. None of the applications of the claim involve any mechanical property but only involve printing of a tester strip to determine the printability of the paper or ink. Since the goods do not directly test or indicate any mechanical property. The item is not covered by CTH 9024.80.

Appeal rejected

PRESENT :

None for the appellant.

Vimlesh Kumar, SDR for the respondent.

judgment

Per : Ms. Jyoti Balasundaram

The importers herein imported item described as "Printability Tester AIC 2-5" and cleared the same on payment of duty @ 60% + 45% + CVD 15% under Customs Tariff Heading 9031.90 and subsequently claimed refund on the ground that the goods attracted duty @ 40% + nil + CVD 15% under Customs Tariff Heading 9024.80 read with Notification 158/88-Cus dated 13.5.1998. The claim for refund was rejected by the Assistant Collector on the ground that the catalogues submitted by them indicated that the equipment was meant for visual judgement of the evenness of the print while heading CTH 9024.80 covers machines/appliances for testing hardness compressibility, elasticity or other mechanical properties and hence the goods were not classifiable under CTH 9024.80. The Commissioner (Appeals) upheld the adjudication order. Hence this appeal.

2. None appears for the appellants in spite of notice. Hence we heard the learned SDR and perused the records.

3. We find that the Commissioner (Appeals) has discussed in detail the working of the imported item and its functions and the catalogue before him. He has noted as under:

"The IGT printability testers as per catalogue have designed to test small samples of printing materials under the same conditions as occur in the printing trade. Printing speed, pressure and thickness can be adjusted with the required precision. The parameters can be varied independently which can influence the variables on the printing and be valued. There are three types of ICT printability testers. Models A1--3 and A2--3 are mechanically driven whereas model AIC 2--5 is electrically driven. All the three testers feature one sector, functioning as an impression cylinder. Model A1-3 is comparable to one printing press. Model A2-3 is comparable a two colour press. Model AIC2-5 offers numerous possibilities for investigation of materials used in the printing process. Not just paper and ink but also tinplate, plastic foil and even textiles can be tested on the AIC2-5. The device features and sector and two printing spindles allowing super-imposing of subsequent colours on substrates. These devices are used to evaluate the quality of paper in relation to the printing process. In carrying out a test, strip of paper is clamped to the sector, the printing disc is pressed on to the paper with an adjusted force and the sector-is turned either with an increasing or a constant speed. For testing on the IGT printability testers there are standard paper strips for comparison of test results. The results are judged from the test strip. On model AIC 2-5, prints up to 50 mm wide can be made which enables the visual judgment of the evenness to print in a glance. A test strips printed in two colours shows the composite print of the two colours as well as the separate colours."

He has also noted that the catalogue shows various applications of the tester, namely:

1. Density and colour of the print,

2. Picking

3. Striking - in

4. Tendency of offset inks to emulsify

5. Smoothness of paper

6. Testing inks for wet--on--wet printing.

7. Transparency of printing inks

8. Scumming test

9. Determination of ink transfer

10. Striking through

11. Testing offset blankets,

He has further held as under:

"There are certain other applications possibly using certain accessories. Out of above, one can examine whether one or more applications involve testing of mechanical properties of paper or ink. Mechanical properties are the properties which are relevant when mechanical forces are applied on the materials. Hardness tensile strength, compression strength, bending strength, stress, strain, elasticity, ductility, etcetra are examples of mechanical properties. It is obvious that, density, colour, tendency to emulsify, smoothness of paper, transparency of ink, ink transfer, testing of offset, blankets are not mechanical properties. Regarding the remaining properties, the appellant, has contended before the Tribunal that picking involves testing of a mechanical property. Therefore, it is necessary to understand this aspect in some detail. As per the catalogue, picking of paper is defined as the damage of the paper surface occurring during the printing operation. At the time of printing-form is lifted of the paper, the link will exert a certain force on the paper. This splitting force is directly related with the viscosity of the ink and the printing speed. When the splitting force exceeds certain value, the surface of the paper will be damaged. The determination of the point where picking begins should be performed without a magnifying glass or a microscope but with gracing incidence light. The tendency of inks to pick can be compared by running pick test on the strips of paper with a law pick resistance. Speed at the beginning of picking with a certain paper/ink combination, is not the same as the admissible printing speed on the press. But one can be sure that if a paper with a certain pick resistance can be well printed with a certain ink, this also will be the case with other papers of the same or higher pick resistance. From the above it is clear that the tester does not, measure or test picking strength of the paper but, merely indicates that a paper of certain type having certain picking strength is printable or not. If one looks at the application with regard to striking-in, which is a measure of speed with which the ink is absorbed by the paper, the IGT striking-in test is based on the following principle. If a printed strip that is not yet dry, is brought into contact with a blank piece of paper, part of the ink that still is pressed on the strip will set off (smearing) on the blank paper. The ink that has already been absorbed in the paper will no longer influence the set-off. After a strip has been printed in the normal manner, the sector is rotated for a second time, after the printing disc has been replaced by the clean disc with set off against the blank one. By carrying out the second rotation in steps, the striking-in can be judged at various intervals on a single strip. Striking through is a tendency of the paper which makes the print visible on the back of the paper. The thickness of the paper plays the most important part in this. Therefore, striking through is also not a mechanical property. Scumming is defined as the transfer of ink to non-image areas and obviously it is not a mechanical property."

4. He has rightly held that, as seen from the above, none of the above applications involve any mechanical property but only involve printing of a tester strip to determine the printability of the paper or ink. He has also held that there is no device to show or record measures of any mechanical property and even the units of measurement of any mechanical property have not been specified by the manufacturer. Since the goods do not directly test or indicate any mechanical property we agree with the lower appellate authority that the item is not covered by CTH 9024.80 and hence uphold the impugned order and reject the appeal.

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