S. Venkatesan, President

1. After having heard the above two appeals, the two learned Members constituting the Special Bench B1 differed on the following point :-

Whether the subject machine is classifiable under TI 33DD(sic) or TI 68 of the First Schedule of the Central Excises and Salt Act?

The case was accordingly referred to the President in terms of the proviso to Section 129C(5), Customs Act, 1962, as applicable to Central Excise. The matters were heard on 30-4-1987.

2. Although the question as framed refers to TI 33D, the reference is obviously to TI 33DD; and the hearing was on this basis. The article in question will for convenience be referred to as "the Trainer". Further, since there are 2 appeals, in which M/s. Allied Computers are respectively respondent and appellant, the 2 parties are referred to for convenience as "the manufacturer" and "the Department".

3. On behalf of the Department, Shri H.L. Verma, SDR, submitted that the appropriate tariff item was No. 33DD. He pointed out that this item covered "Computers (including central processing units and peripheral devices), all sorts". The use of the words "all sorts" made this an inclusive definition, which would cover even computers meant only for training purposes. The item was not limited to computers for use by professionals. In support of his contention that the words "all sorts" would cover even goods whose inclusion was less obvious, Shri Verma cited the Tribunal's decision in the case of Shellya Industries v. Collector of Central Excise, Bangalore (1983 ELT 1827). He also relied oh the decision of the Bombay High Court in the case of Ravji Industrial Corporation v. Union of India 1981 ELT 734 (Bombay) to submit that the Word "including" implied that the items named were not exhaustive but illustrative.

4. Shri Verma submitted that notifications could be used for interpreting the scope of a tariff entry. In this connection he relied on the judgment of the Supreme Court in the case of J.K. Steel (1978 ELT 355 SC). Based oh this, he referred to Notification No. 25 4/77-CE, dated 22-7-1977, granting exemption from excise duty to computers sold to approved educational and research institutions. This exemption would show that even computers adapted for educational purposes were liable to duty under the tariff.

5. It was pointed out from the Bench that although there was a reference in the Appellate Collector's order to a letter dated 28-2-1980 from Shri R. Bandyopadhyay, Senior Scientific Officer in the Department of Electronics, there was no copy of it on the record. Thereupon Shri Lakshmi Kumaran, the learned advocate for the manufacturers, produced a copy of the aforesaid letter. An attested copy was taken on record.

6. Shri Verma did not deny that in this letter the Senior Scientific Officer had recommended that the goods in question should be classified under TI 68 and not under TI 33DD. He however submitted that the advice carried no weight as the writer did not give any reasons. Referring to the further letter dated 15-4-1980 from the Department of Electronics, Shri Verma pointed out that this letter was signed by the Cost Accounts Officer. The writer did not give any indication that it was based on the opinion of an expert in electronics. The opinion of a Cost Accounts Officer on such a question was not authoritative. Therefore according to him neither of the two letters should be given any weight.

7. Shri Verma referred to para 23 in the order of the learned Member Shri Santhanam, setting out the reasons why according to him the Trainer could not be considered to be a computer. The first reason given was that the key board was very primitive. Her submitted that this did not prevent it from functioning as a computer.

8. The second reason was that since the machine operated on the principle of micro processing its scope was restricted, arid it was only for the purpose of imparting knowledge of the mechanism of a computer. He submitted that this reasoning als