A.J.F. D'Souza, Member (T)

1. This appeal under Section 129(a) of the Customs Act, 1962, is directed against Order-in-Review No. 2, dated 3-7-1982/14-10-1982 passed by the Collector of Customs, Calcutta.

2. The Appellants had filed a Bill of Entry for clearance of a "Nyloprint Wash-out Unit" which was assessed under Heading 84.34 of the Customs Tariff Act, 1975 at 40% plus 10% plus CVD 8% by the Assistant Collector of Customs, Appraising Group IV by his Order dated 20-5-1982 and duty was paid on 28-5-1982. Subsequently, under re-examination of the classification along with the catalogue, it was found that the goods appeared to be assessable under Heading 90.10 and review proceedings were initiated by the Collector under Section 130(2) of the Customs Act, 1962. The importer waived his right to Show Cause Notice and was granted a personal hearing. Thereafter, the Collector passed the impugned order. He found that the Flat Exposure Unit "of the exposure machine is used to expose Nyloprint plates to ultra violet rays by being placed in contact with negatives so that the surface exposed to such a light got hardened and became insoluble". The un-hardened (non-exposed) portions of the nyloprint plates are required to be washed-out by solvent in the "wash out unit". Following drying and re-exposure of the nyloprint plates, the print (illegible) is ready for use. He observed that photographic cameras, enlargers or reducers and photographic apparatus for preparing printing plates were excluded from the scope of Heading 84.34, as they were specifically covered in Chapter 90 (vide Page 1283 EN. 2 under Heading 84.34 CCCN). Photography is also defined as a process or art of re-producing images of objects on sensitised surfaces by the chemical action of light or other forms of radiant energy as X-rays or Gama rays. Ammonia printing machines using high pressure active lamps emitting ultra-violet rays were known as photo-copying machines as they work on photographic principles and Explanatory Note on Page 1554 under Heading 90.10 also mentions photocopying machines which work by exposure to ultra-violet rays. He concluded that the machine in question is more specifically covered by the description "apparatus and equipment of a kind used in photographic and cinematographic laboratories under the Heading 90.10 and is correctly assessable thereunder. He rejected the contentions that similar goods have been assessed under Heading 84.34 in Madras Customs House and stated that even if a couple of such items have been so assessed, it cannot form the basis of an established practice. He ordered re-assessment and recovery of extra duty.

3. In the present appeal, it is contended that the literature and documents establish clearly that nyloprint wash-out unit is a device for washing out un-hardened portion of polymer coating from the printing blocks/plates and it has no other use at all. It was also imported for manufacturing activity of block making and nyloprint photo polymer plates as per Small Scale Industries Registration Certificate. Heading 84.34 clearly covers "machinery; other than machine tools of Heading No. 84.45/48 for preparing or working printing blocks plates or cylinders". The subject goods not falling under sub-heading 84.45/48 and being accepted for working or preparing printing blocks/plates only, was correctly covered by Heading 84.34 and there was no justifiable reason to change the earlier assessment. Washing out of the un-hardened portion by polymer coating from the nyloprint plates is the only process of making printing blocks/plates. So, the machinery or equipment for such finishing process is universally held to be specifically covered by Heading 84.34. The fact that the Collector allowed clearance under Appendix-2, Serial No. 12(5) of the Import Policy for 1981-82 under OGL which covers Printing Machinery as Plate Processor shows that he considered it as a plate processing unit for ITC licence purposes but for levy of Custo