Jyoti Balasundaram, Member (J)

1. The classification under the Customs Tariff of the publication titled "Our Baby's First Seven Years" is the subject-matter in dispute in this appeal.

2. The appellants herein imported a consignment of 35 post-parcels of the above-mentioned publication and sought clearance of goods free of duty under Heading 49.01 of the Customs Tariff Act, 1975, as 'printed books' against an Import Licence valid for "books & teaching aids" in terms of Para 134 of the Import & Export Policy 1985-88. The Addl. Collector of Customs, by Order dtd. 04-04-1989, held that the publication cannot be treated as books for children, falling within Para 134 of the Import & Export Policy and, therefore, held that the importation was in contravention of Import Trade Control restrictions and prohibitions imposed under Section 11 of the Customs Act, 1962 and confiscated the import with option to redeem the same on payment of a fine. The Additional Collector did not enter into the arena of merits of classification under the Customs Tariff which, according to him, was within the jurisdiction of the Assistant Collector, he being the proper officer for the purpose. In appeal, the Tribunal by its Order No. 416/89 dated 13-10-1989, reversed the order of the Additional Collector, holding that the publication is a book validly imported under the ITC Policy 1985-88.

3. The issue of classification was decided by the Assistant Collector of Customs, who, by Order dated 5-5-89, classified the import under Heading 4820.10/49.11 (since both headings carry same rate of duty). The Collector of Customs (Appeals), by Order dated 29-03-1990, classified the items under Heading 48.20 as "diaries and similar articles". Hence this appeal wherein the appellants claim classification under Heading 49.01 as books, attracting nil rate of duty.

4. We have heard Shri M. Chatterjee, Ld. Consultant for the appellants and Shri M. Jayaraman, Ld. S.DR. for the respondent,

5. The first submission of the appellants is that the finding of the Tribunal in its Order dated 13-10-1989 that the publication is a book for ITC purposes is binding for the purpose of classification under the Customs Tariff Act. In this context, the Ld. Consultant invites attention to Para 59(1) (2) & (3) of the Import Export Policy 1985-88, which reads as follows :-

Classification of Items :

"59. (1) - The Schedule I to the Imports (Control) Order, 1955, reproduced in Appendix I-B to this Book, commonly known as the I.T.C. Schedule, contains the classification of all the articles that enter into the import trade.

(2) - With effect from 1st April, 1976, the Schedule I to the Imports (Control) Order, 1955 reproduced in Appendix I-B to this Book has been revised in alignment with the First Schedule of the Customs Tariff Act, 1975 (51 of 1975). The Revised ITC Schedule contains 21 Sections sub-divided into 99 Chapters.

(3) - There is now a complete co-relation between ITC Classification and ICT Classification. Both these are based on BTN Classification. (Brussels Trade Nomenclature)."

He brought to our notice the finding in the order of this Tribunal dated 26-03-1990 [Order No. 178/90-NRB Kohinoor Woollen Mills v. Collector of Customs, N/Delhi, reported in MANU/CE/0456/1990 : 1990 (49) ELT 230 (Tri.)], that it is apparent from Para 59 of the ITC Hand-book 1985-88 that classification of the ITC Schedule is based upon Indian Customs Tariff Schedule which in turn is based on CCN. He cited the decision of the Hon'ble Bombay High Court in the case of Commissioner of Sales-Tax v. Agarwal & Co. [1983 (13) E.L.T. 116] in support of the proposition that in a fiscal legislation, a general term used for describing any commodity covers that commodity or item or article in all its forms and varieties. He relied upon the decision of the Tribunal reported in MANU/CE/0138/1988 : 1988 (36) ELT 308 -(Hico Products Ltd. v. Collector of Customs), to support his stand that the Collector of Customs (Appeals) could not hav