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Judgment
Mohan, J.—The petitioner imported a Desma 715-718 fully automatic high pressure plastic foot wear injection moulding machine with
accessories and spares under cover of Madras Customs Bill of entry No. 491 dated 7.11.1970 from Messrs Desma Werke GMBH Achin Bei
Brenen, Germany, at a cost of about Rs. 5 lakhs. The object of the import was for the manufacture of boots and shoes. The said machine was
assessed to customs duty at 35% ad valorem under sub-item No. (b) of Item 72 of the Indian Customs Tariff. As the machine was imported
through the National Small Industries Corporation Ltd., the duty was paid through them and the petitioner took delivery of the machine on hire
purchase basis.
The petitioner states that the levy of duty at 35% under Item 72(b) of I.C.T. is illegal. According to him it should have been assessed for duty at
10% under entry No 72(15) Indian Customs Tariff read with Government of India Notification No. 117 -Cus. dated 20th August, 1955. Under
those Circumstances, he preferred a claim to the Assistant Collector of Customs for reassessment under Item 72(15). That was rejected on 28th
January, 1971 by the Assistant Collector of Customs against which order he preferred an appeal to the Collector which was allowed on 29th
March, 1972, and the assessment was made at 10% and the refund of the excess was ordered. Thereafter, a show-cause notice was issued on 5th
September, 1973, as to why this order should not be annulled and the original order passed by the Assistant Collector be restored. The petitioner
put forth its representations. By the impugned order dated 12th September, 1974, the matter was decided against the petitioner. Hence the present
writ petition to quash that order.
It is the contention of the learned counsel for the petitioner Mrs. Ramani Natrajan that the classification of this machinery under Item 72(b) of
Indian Customs Tariff is wholly illegal. Further, according to her, the assessment should have been only under entry No. 72(15) because it is
essential that the impugned article is a boot and shoe making machinery. Merely because chappals are also capable of being made by machinery
imported by the petitioner, it does not cease to be any the less the boot and shoe making machinery. Therefore, the reasoning of the revisional
authority is perverse. Then again there is no reason why the illustration No. 3 of the pamphlet produced by the petitioner should be classified as
''Open Shoe''. The classification if that is a chappal is wrong.
Mr. T. Chengalvarayan, learned counsel for the respondents, states that the boot and shoe making machinery consists of several parts and each
has got a distinct function of its own in the set of machinery as is contemplated under Item 72(15). As a matter of fact, the Government of India
themselves classified this particular machine, namely, plastic injection machine fully automatic for the manufacture of sandals and slippers under
72(b), being fully aware of the fact that it is capable of producing slippers etc. In other words, in this machinery when plastics granules are put with
necessary chemicals, a mould shoe comes out of the machine. Later having regard to the public demand the duty was reduced to 10%. That will
also go to strengthen his argument, In any event, this court cannot interfere unless the reasoning is perverse.
The learned counsel also brings to my notice the Brussels Nomenclature relating to boots and shoes machinery and contends that only such of
those mentioned therein could be classified under 72(15). Therefore, no exception could be taken to the present classification under 72(b).
In my view, the whole matter can be disposed of on a short point The show cause notice, issued to the petitioner proposing to revise the order
of the appellate authority, as well as the ultimate order of the revisional authority proceeds on the singular footing that the petitioner''s machinery is
capable of making chappals and, therefore, it cannot fall under Item 72(15). This reasoning in my view, is wholly unacceptable. Boot and shoe
making machinery stated under 72(15) is descriptive in nature. Merely because sandals or chappals are also capable of being made, it does not
cease to fall under that Item However, if for the purpose of tariff the Brussels Nomenclature is sought to relied on then the authority should have at
least referred to that. I find under Item (E), there are number of machineries that are contemplated which are as under:
* * *
It should be noted that some of the machines of the present such as graining, cutting out, perforating, pricking, and even certain boot or shoe
making machines, can be used for materials other than leather (e.g.) cardboard, imitation leather or artificial plastics they remain, however, in the
present heading provided they are clearly designed to used mainly for hides, skins or leather. But the impugned order does not mention any for
them. The fact that originally it was classified as Item 72(b) and later on, the duty was reduced to 10% may be points in favour of the respondents.
But nevertheless, it is for the authority to consider all these aspects in detailed fashion and should not be guided by the singular fact of capability of
the machinery imported by the petitioner producing chappals. In this view, the impugned order is hereby set aside and the matter win stand
remitted to the revisional authority for fresh disposal in the light of the observations made above. No costs.