Per G.R-Sharma: Thisappealisdirectedagainsttheorder-in-originalNo.3/ TVS/92 dated 3.11.92: The Collector, Central Excise, in his order held:

"Further definition of plan which includes design and drawings as classified by the Hon'ble CEGAT order must have been hand drawn to accept its inclusion under 4606. So this Hon'ble CEGAT order is not applicable to the subject issue.

Now the importers reference to chapter note 4 last sentence deserves our attention, It states that 'however printed picture or illustrations not bearing a text whethere in the form of signature or separate sheets fall in heading No.49.11.

But this note is silent about designs with nothings' which is what the subject goods were found on examination. This does not therefore justify its classification under 4901.

Description of goods as per invoice and bill of entry clearly ascertain the classification under heading 49.11.91.

General Rules of Interpretation also justify its inclusion under 4911.91.

Chapter Notes 4 and 5 do not exclude the goods from 4911.91.

ORDER

I therefore, order the subject goods to be classified under CTH No. 4911.91.

I order that the goods be released after payment of 100% duty. No penal action is contemplated as there is no proof that the party had indulged in any act or omission that may render the goods liable for confiscation."

2. The facts of the case, in brief, as set out in the memo of appeal are that the appellant has a cement division in Jay Kay Puram in the State of Rajasthan; that for carrying out certain modification/improvement at the said cement plant the appellant-desired to import technical know-how from the British Technical Consultants; that the appellant entered into an agreement For the supply of the technical design specification and drawings with M/s Blue Circle Industries Ltd; that the engineers of the said foreign consultants visited the appellant's company studying the exact technical requirements of the appellant's cement plant, it submitted the quotation on 15.5.91 ; that on October 16,1991 the appellant confirmed the said quotation by placing the order for the supply of items listed below:

1. Design specification for secondary firing at preheater.

2. Conceptual design and technical specifications for centralised operation control system employing distributive process control system.

3. Modern Cement Technology with design and selection techniques of latest process systems (volume 1V comprising of Pollution, Environmental & Process Control Systems).

The foreign supplier drew invoice showing 49,500 pounds as the consideration of the said documents and know-how. In the Bill of Lading, the description of the consignments were given as 'technical designs and drawings as per the invoice attached'. In the entries pertaining to the tariff and the Customs Duty it was claimed by the appellant's that the consignments are covered by Customs Tariff Heading 4906.00 and 4901.90; and further that the imported consignments were free from the charges of any Auxillery Duties vide Notification No.23/91-Cus (serial No.24). The value of the total consignments thus was shown as Rs. 22,55,975/-. The appellants claimed the duty free assessment under CTH No.4906. The goods were examined by the Customs. The goods did not contain any hand-drawn original drawings or any photographic reproductions on sensitised paper or any carbon copy or any original hand-drawn drawing, therefore, the Customs were of the view that the goods could not be assessed to duty at nil rate of duty under CTH 4906.00. The goods were found to contain 6 folders of cement technology and the folders contained design as per the description in the invoices. The Customs Authorities were of the view that the goods merit classification under heading 4911.91 at the rate of 100% plus nil (Notification No.23/91-Cus sl.No.24). Accordingly, a show-cause notice was issued to the importers asking them to show-cause as to why the customs duty under CTH 491 1.91 should not be levied and why