1. This is an appeal filed by the Commissioner of Customs, (Airport) Chennai against the Order-in-Original No. 8/2001 (Commr. Air), dated 9.2.2001 passed by the Commissioner of Customs, (Airport), Chennai, on the direction of the Central Board of Excise & Customs vide order No.233-R/2001 - F.No. 389/170/2001-JC(BMB) dated 4.10.2000. The facts of the case are that the officers of the Directorate of Revenue Intelligence gathered intelligence that the respondents herein had imported technical know-how in documents from M/s Nagase & Co. Japan for manufacture of S-Iibuprofen, a pharmaceutical drugs through the baggage of their Company personnel and cleared them without declaring the same to the Customs authorities and thus evaded payment of duty on the same. The detailed investigation conducted by the DRI revealed that the respondents herein had entered into a collateral agreement With M/s Nagase of Japan and the latter had agreed to transfer the technical know-how in writing for a monetary consideration and agreed to give exclusive licence pertaining to manufacture of the said drugs by a specific patented chemical resolution methods using PBA which is required by the licensee i.e. the respondents. As per para 2.1, page No. 1 of the Option Agreement dated 21.5.1995 entered into between the respondents-importers and the Japan firm viz. M/s Nagase of Japan, the importers were required to pay a sum of US$ 9,00,000 (Rs 2.83 crores) towards the payment of option/licence fee and M/s Nagase of Japan was to grant an option to enter into the licence agreement. In terms of the agreement the importers had remitted US 6,00,000 on 6.6.95 and US$ 3,00,000 on 4.8.95 to M/s Nagase of Japan for supply of technical information about the manufacture of S-Ibuprofen using M/s Nagase's proprietary resolving agent SPBA and subsequently the technical information was exchanged.
2. Statement was recorded from Sekar, Vice President of the respondents-importers who stated that the importers had entered into a licence agreement with M/s Nagase of Japan. He also stated that they have made payment of US$ 9,00,000 in two instalments and that payment was made as part of the option fee for the purpose of obtaining basic technical information which is termed as "technical know-how" and he further stated on a query that option fee was paid towards obtaining basic technical information mentioned as technical know-how are essentially the same. He has also stated that they have not declared the payment of technical know-how to the Customs at any point of time.
3. Statement was also recorded from Shri Abhaya Kumar Joint MD of the respondents who also corroborated the statement given by the Shri SG Sekar.
4. The technical know-how in printed form in loose sheets given by their foreign collaborator over a period of time till the date of import of the main raw material SPBA is classifiable under sub-heading 4901.99 of the Customs Tariff Act, 1975 according to the Revenue. Since the technical documents were brought by the personnel of the respondents in their personal baggage, according to the Revenue, they are assessable to duty under heading 98.03 of the first Schedule to Customs Tariff Act, 1975 read with Customs Notification No. 136/90 dt.
20.3.90 amended. Therefore, the respondents have evaded payment of customs duty to the tune of Rs. 2,83,32,000. Accordingly proceedings were initiated against the respondents by issuing show cause notice proposing to demand duty of Rs 2,25,65,600 under the proviso to Section 28(1) of the Customs Act, 1962 holding the technical know-how documents are liable for confiscation and the show cause notice also proposed to impose penalty under Section 114A of the Act apart from demand of interest under Section 28AB of the Customs Act, 1962 and the proceedings culminated in the order of adjudication whereby the adjudicating authority dropped all the charges brought out in the show cause notice. The present appeal filed by the department on the direction of the Central Board of Excise & Customs is for determination of the following points: (a) Whether after taking into consideration the fact stated above, the order of the Commissioner in extending the benefit of Notification No. 25/95-Cus dated 16.3.95 to the technical know-how in printed documents in loose sheets imported by the respondents-importers on payment of US$ 9,00,000, treating it as a Manual instead of taking the sum of Rs 2,83,32,000 paid by the respondents to M/s Nagase & Co. Japan for the supply of technical know-how in documents, a transaction value under Section 14 of the Act read with Rule 4 of the CVR 1988, demanding duty amounting to Rs. 2,26,65,600 with interest, holding the goods liable for confiscation and for having rendered the goods liable for confiscation imposing penalty on the respondents-importers under Section 114A of the Act, as proposed in the show cause notice, is legally correct and proper or needs any revision.
(b) Whether by an order passed under Section 129B of the Act, the Tribunal should modify the order passed by the Commissioner and pass an order treating the payment of Rs. 2,83,32,000 as transaction value under Section 14 of the Customs Act, 1962 read with Rule 4 of the CVR 1988 and demand duty of Rs 2,26,65,650 by invoking the proviso to Section 28(1) of the Act with interest under Section 28AB of tiff Act holding the goods in question liable for confiscation.
(a) The respondents herein have imported through Airport, in baggage form an exclusive confidential technical know-how in documents belonging to a foreign country on payment of collaboration fees.
(b) The technical know-how in documents cannot be classified under "Printed Manual in loose leaf documents" and hence the benefit of Notification No. 25/95 cannot be extended .
(c) The Commissioner ought not have treated the technical know-how in question imported through baggage by the personnel of the respondents without declaring the same to the Customs and without payment of duty as a printed manual and extended the benefit of Notification, Therefore, the impugned order dropping the proceedings initiated against the respondents is legally not correct.
(d) The Commissioner ought to have taken the sum of Rs 2,83,32,000 paid by the respondents to M/s Nagase & Co. for the supply of technical know-how in documents as transaction value under Section 14 of the Customs Act read with Rule 4 of the CVR 1988 and demanded duty amounting to Rs 2,26,65,600.
In support of the plea, the Revenue has relied upon the judgment of the Hon'ble Apex Court in the case of CC, New Delhi v. Parasrampuria Synthetics Ltd., 2001 (77) ECC 449 (SC) : 2001 (98) ECR 185 (SC) wherein it was held that printed drawings, designs and plans imported by the party under the Foreign Transfer of Technology Agreement under Sl. No. 10 or Sl. No. 15 of the Notification 25/95-Cus dated 16.3.95 are not eligible for the benefit of the said Notification.
6. Shri C. Mani learned DR for the department argued the matter on the above lines and sought for setting aside the impugned order and allowing the Revenue appeal.
7. The Respondents have filed cross objection wherein they have taken the following grounds: (a) The Central Board has authorised the CC, Airport to file appeal, whereas the appeal has been filed by the Commissioner of Customs, Chennai and hence on this score itself the appeal is liable to be set aside.
(b) Amount of US$ 9,00,000 paid by the respondents to Japanese Co.
represents the option fee. Section 3 titled "option fee" reads as follows : "In consideration of the option granted herein, SHASUN shall by telegraphic transfer, a non-refundable option fee, subject Section 2.5 above, of nine hundred thousand U.S. dollars (US$ 900.000) to the hank account designated by NAGASE in two instalments (i) the first of which shall be six hundred thousand dollars (US$600,000) and shall be paid within ten(10) days the date of this Option Agreement, and (ii) the second of which shall be three hundred thousand U.S. dollars (US$ 300,000) shall be paid after commencement of the demonstrations set forth in Section 4.3 but before SHASUN exercises its option hereunder. All bank and other charges required for the payments of the option fee shall be borne by SHASUN. The income tax, paid on payment of the option fee to NAGASE hereunder shall be home by NAGASE and shall he computed and paid in accordance with laws of India and any convention, treaty or other agreement between Japan and India for the avoidance of double taxation." And under Section 4 "Feasibility" study the following is stated in the option agreement.
"Upon receipt of the option fee, NAGASE shall disclose to SHASUN a part of the LICENSED TECHNOLOGY to the extent NAGASE considers necessary which includes the detailed S-Ibuprofen production process flow chart, analytical method, mass balance and the specifications of fresh PBA, recycled PBA, and recemized ibuprofen for the sole purpose of enabling SHASUN to conduct the experimental and confirmation works referred to in Paragraph 4.2 below." In Para 4.3 of the above option agreement it is further stated as under: "Upon request of SHASUN, NAGASE shall conduct demonstrations that shall verify the data as prescribed in Exhibit I hereto in ten(10) litre scale. Such demonstrations shall he conducted at NAGASE's facilities for a maximum of four (4) weeks during the option period and shall consist of one (1) cycle of S-ihuprofen production process from fresh ibuprofen using fresh PBA and one (1) cycle from racemized ibuprofen using recycled PBA. At SHASUN's option, NAGASE shall demonstrate a maximum of two (2) additional cycles of S-ibuprofen production process from racemized Ibuprofen using recycled PBA during such four (4) weeks period," From the above it is clear that the option fees paid to M/s Nagase & Co. in two instalments represent the payment towards the technical know-how given by them to the respondents by disclosure, through conducting experiments, exchange of information, conducting trails, testing of the results, and finally finding out the feasibility of commercial production in India of Ibuprofen based on the technical know-how transmitted by the foreign company. Therefore, it cannot be said that payment of US$ 9.00,000 should be linked only to a few documents alleged to have been brought by the personnel of the respondents. It is not correct to say that technical know-how fees paid to the foreign company represents the price for the documents brought by the personnel of the respondents.
(c) There is no evidence at all to suggest that when the company personnel brought the documents, by which flight and what declaration they have filed. The whole basis for the proceedings is the letter, given by the respondents, that the documents were brought by their personnel.
(d) If at all there is duty liability, it can only be from the passengers who were alleged to have brought the technical documentation.
(e) In terms of Section 27 of the Customs Act, if the allegation is that the personnel of the company have brought the documents without declaration of the contents of the baggage, the alleged duty with regard to the contents of the baggage has to be demanded/recovered from those personnel.
(f) No statements were recorded from the tech deal personnel who were reported to have brought the documents and it is not the case of the department that there was any mis-declaration.
(g) The whole basis of the appeal is that the documentation referred to cannot be called as a book or a manual.
8. The learned Counsels appearing for the respondents reiterated the grounds taken in the cross objection and sought for upholding the order of the Commissioner.
9. We have carefully considered the submissions made by both the sides and gone through the case records. We find that the short issue that arises for consideration in this appeal is whether the technical know-how brought by the respondents herein from M/s Nagase & Co Japan can be treated as Manual in loose leaf form as held by the Commissioner in the order impugned or the amount paid by the respondents to the foreign company should be treated as a transaction value in terms of Section 14 of the Customs Act, read with Rule 4 of the CVR 1988. We find that the Commissioner has recorded a finding that under the agreement M/s Nagase & Co. Japan shall disclose a part of the licence technology which includes detailed S-Ibuprofen production process flow chart, analytical method, mass balance and the specifications of fresh PBA, recycled PBA and recemized ibuprofen etc. It also provided that the foreign company shall conduct demonstration that will verify the data. There was another agreement called Licence Agreement. It also provided for training of the personnel of the respondents by the foreign company. Further it provided that the Japanese Company will supply a resolving agent called PBA for the purpose of implementing the technology. Thus the two agreements covered joint experimentation, training and even supply of certain material. There is clear evidence on record as discussed by the learned Commissioner in para 9 that the total payment of US$ 9,00,000 was not confined to exchange of documents but also related to all other activities narrated above and as pleaded by the learned Counsels for the respondents. Further the show cause notice in para 12(v) has stated that the technical know-how were in loose-leaf documents. Further sub-para (vi) of para 12 also states that the technical documents were in printed form. The show cause notice also sought to classify the know-how documents under heading 4901.99 of the CTA and this classification tallies with the ruling of the Tribunal in the case of Lakshmi Cement v. CC, New Delhi, 1996 (84) ELT 271. In this case the question involved was regarding the classification of technical documents in loose leaf transferring know-how relating to manufacture of cement and the Tribunal held that technical documents were classifiable under heading 4901.99.
10. In the present case, we find that at the relevant time, the tariff entry 49.01 read as under : 49.01 Printed books, brochures, leaflets and similar printed matter, whether or not in single sheets In the present case the import was in June-July 1995. Vide Serial No.10 of the schedule to the Notification No. 25/95-Cus dated 16.3.95 printed books (including covers for printed books) and printed manuals including those in loose leaf-form with binder) falling under heading 49 of the CET are exempted from payment of duty. In the light of the entry under Serial No. 10, we have to see whether the technical know-how in the form of loose leaf documents imported by the respondents herein from M/s Nagase & Co of Japan can be classified as manual as held by the learned Commissioner of Customs. The Commissioner has held that since the documents in question were explaining the method of manufacture of S-Ibuprofen, they can be classified as "manual" in loose leaf-form and were eligible for exemption in terms of the said Notification. We find that the adjudicating authority has relied on the definition of manual which clearly defines as "A book containing in concise form the principles, rules and directions needed for the mastery or an art, science, or skill". Whereas in the instant case, the subject goods are not in the form of a Book. Further, the respondents neither in the reply to the show cause notice nor during their personal hearing contended that the goods are classifiable as a book. In the present case it is an admitted fact that the goods were technical documents which were confidential in the form of loose leaf and were received by them in piece-meal. We further find that the Hon'ble Apex Court in the case of CC, New Delhi v. Parasrampuria Synthetics Ltd., 2001 (77) ECC 449 (SC) : 2002 (98) ECR 185 (SC) while negating the order of the Tribunal held that printed drawings, designs and plans imported by the party under the Foreign Transfer of Technology Agreement, under Sl. No. 10 or Sl. No. 15 of the Notification 25/95-Cus dated 16.3.95, are covered by Sl. No. 15 and not Sl. No. 10 as printed books ..............". The Hon'ble Supreme Court in paragraph 9 of the said judgment clearly noted the argument advanced by the learned Attorney General who argued that in general trade parlance a book is known by feature like (i) a book has an author, (ii) a book has a publisher, (iii) a book is a priced publication (iv) the book is available to all and sundry who pay for it (v) the book does not have a memorandum of Understanding (vi) there is no confidentiality about a book (vii) a book has a subject to deal with and the pages are serially numbered and neatly bound and it should have the International Books Subscriber Nomenclature Code. Further in para 17 of the said judgment, the Hon'ble Apex Court has held as under: 17. In any event, one of the basic cannon of interpretation of statute is that the Legislature intends to ascribe the ordinary common parlance and meaning to the words used therein. In the matter under consideration, the Legislature has used the word 'printed books' and clarified it by inclusion of covers-the intent thus seems to be rather obvious to mean books in ordinary sense and not any other meaning. The Legislature has also included 'printed manuals' and explained it by express words "including those in the loose leaf form with binder". Can the articles imported be termed to be 'printed manuals' in 'loose leaf form with binder. Unfortunately, the answer cannot be in the affirmative, it contains specifications in terms of a technology transfer agreement, it is not a collection of various articles in trade journals but a definite importation of technology transfer which obviously was not intended to mean by the user of the word 'manual'. The word 'manual' means and implies a small book for handy use and includes a reference book, a band-book as also a text book (vide Concise Oxford Dictionary) and on attribution of the same meaning, the words used by the Legislature cannot identify to be a product of technology transfer between two countries. Ordinary common parlance ought to be attributed for the expressions used by the Legislature and on attribution thereof one cannot possibly come to a conclusion that the Exemption Notification ever aimed at extending the meaning to the extent as has been effected by the Tribunal. The decision of this Court in the case of Scientific Engineering (supra) has been totally misread and misapplied in the contextual facts--Scientific Engineering (supra) on the contrary lends all possible credence to the contentions as propagated by the appellants and not the Respondents. The decisions of this Court in the case of Collector of Central Excise, Baroda v. Indian Petro Chemicals,(SC) and HCL Limited v. Collector of Customs, New Delhi, 2001 (76) ECC 11 (SC) : 2001 (130) ELT 405 (SC) do not in any lend any support to the contentions of the respondent herein by reason of the special fact situation as above and in any event we are not concerned with two notifications, one of which confers benefit on to the assessee. Thus, reliance thereon is totally misplaced in the facts of the matter under consideration.
We find that as already noted above, Shri S.G. Sekhar, Vice President of the respondents has admitted in categorical terms that they had entered into a licence agreement with the M/s Nagase & Co of Japan for transfer of technical know-how to manufacture S-Ibuprofen and the technical collaboration was certified by the Banker and the total amount of US$ 9,00,000 was paid by them in two instalments and his statement was also corroborated by the statement given by the Joint Managing Director of the Company. The respondents have taken a plea that at the relevant time printed manuals including those in loose leaf forms with binder falling under chapter 49 were completely exempted from Customs duty, But what we have to examine is whether in the light of the arguments of the learned Attorney General before the Hon'ble Apex Court in the case of CC, New Delhi v. Parasrampuria Synthetics Ltd. (supra) and the findings of the Hon'ble Apex Court in para 17 which is extracted above, whether the technical know-how imported by the respondents in loose leaf form and named as 'manual' or book in loose leaf forms can be classified as manual for the purpose of entry No. 10 of Notification cited supra. It is the respondents' own admission that the fee paid to the foreign company in two instalments represent the payment towards the technical know-how given by them to the respondents by disclosure, through conducting experiments, exchange of information, conducting of trial, testing of the results and finding out the feasibility of commercial production in India of Ibuprofen based on the technical know-how transmitted by the Japanese Co. Nagase and trials were conducted in India as well as in Japan. They have clearly admitted that the payment has been made for the import of the technical know-how. We observe that by no stretch of imagination, a manual or a book could cost US4 9,00,000 (Rs. 2,82,32,000). It is argued by the respondents that the payment made by them cannot be linked only to few documents brought by their personnel. We observe that it is not the case of the respondents that they have submitted any statement showing item-wise payment, if their argument in this regard is to hold good.
11. We further observe that the respondents have taken a plea that the direction to file appeal was issued by the Central Board of Excise & Customs to the CC, (Airport), whereas the appeal has been filed by the Commissioner of Customs, Chennai and hence it has no validity. We are unable to accept this plea inasmuch as in terms of Section 129(A)(2) of the Customs Act, 1962, the Commissioner of Customs, (Airport) has authorised the proper officer viz. Additional Commissioner of Customs, Review Cell (Air) to file an appeal before the CEGAT and the authorisation is on record Based on the authorisation, the Additional Commissioner, Review Cell (Air) has signed the appeal pro forma (CA. 6 form) as could be seen from page two of the said pro forma (form CA 5).
Simply because the typist who typed the CA.5 form has omitted to mention within bracket the word 'Airport', after the word "Customs" on the first page of the CA.5 form, will not make any difference so far as the present appeal is concerned. We therefore, reject the plea of the respondents in this regard. As regards the other plea taken by the respondents that since the goods were brought by the two officers of their Company, the liability to pay duty is on them. We find that this plea of the respondents have already been dealt with by the Commissioner in para 10 of the impugned order wherein he has held that "the Joint Managing Director as well as the Vice President of the Company have admitted that these documents were brought by them for the company on behalf of the company. The technical documents which were confidential one were brought in by our former personnel". There is, therefore, no dispute about the liability of the company in respect of these goods. We therefore reject this plea also of the respondents.
12. We find that the whole basis for dropping the demand against the respondents is that the documentation referred to can be classified as 'manual'. In the light of the finding of the Hon'ble Apex Court, we hold that the principal interest in the goods is related to transfer of technology to the assessee upon their entering into a collateral agreement with the foreign company and the imported know-how has been attempted to be brought into the country clandestinely under the guise of printed manual in loose-leaf forms, to evade payment of customs duty, whereas it has none of the characteristics of a book or a manual known in the common trade parlance, as mentioned above. We are therefore of the considered opinion that exemption under Sl. No. 10 of the Schedule to the Notification No. 25/95 dated 16.3.95 is not available to the respondents and the Commissioner has erred in holding the goods as 'Manual' . We, therefore, set aside the impugned order and allow the Revenue appeal.
13. I have carefully considered the order recorded by learned brother Member (Technical) for allowing the appeal. I am of the considered opinion that the matter has to go back for de novo consideration for the following reasons: As the learned Commissioner has given a detailed finding that technical know-how fee of Rs. 2.83 Crores is not for the documents brought by the company personnel. However, I notice that there was an Option Agreement and another Licence Agreement giving details of transfer of know-how for the manufacture of S-Ibuyprofen from M/s.
Nagase of Japan to the respondents. The technical know-how transfer involved disclosure through conducting experiments, exchange of information, conducting trials, testing of results and finding of feasibility of commercial reduction. Therefore, the value of the documents was a negligible traction of total technical know-how. He has also noted that M/s. Nagase, Japan entered into an Option Agreement with M/s. SCDL prior to actual Licence Agreement. Under this agreement, M/s. Nagase, Japan, shall disclose a part of the licence technology which includes detailed S-Ibuprofen production process flow chart, analytical method, mass balance and the specifications of fresh PBA, recycled PBA, and recemized ibuprofen etc. It also provided that M/s. Nagase shall conduct demonstrations that will verify the data. After total payment or US$ 9,00,000, another agreement called Licence Agreement was entered into by the two companies. He has noted that this indicates that the licence technology has already been disclosed to M/s. SCDL. However, they shall make further additional disclosure covering the standard operation procedure, which will be further supplemented during the (raining at M/s. SCDL. It also provided for training of M/s. SCDL employees by the employees of M/s. Nagase, Japan. It also provided that M/s. Nagase may give training to personnel of M/s. SCDL at M/s.
Nagase factory or laboratory also. Further, it provided that M/s.
Nagase will supply a resolving agent called PBA for the purpose of implementing the technology. Thus, the two agreements covered joint experimentation, training and even supply of certain material. He has noted the details in para-3.3 of the Licence Agreement which has come to the conclusion that the total payment of US$ 9 lakhs was not confined to exchange of documents, bill also related to all the other activities mentioned above. He has noted that the records available did not indicate any break-up of the amount paid towards each of these activities. Although, he has noted that the company in their reply has pleaded that the only negligible fraction of technical know-how is represented by the documents, yet, he has, in para -10, come to the conclusion that the total amount paid is US$ 9 lakhs and if any customs duty is due on the goods imported, the entire amount has to be treated as the value for assessing customs duty.
14. On a careful consideration, I do not concur with this finding for the reason that having come to the conclusion that the amount did not represent the entire technical know-how, but it referred to other aspects of the matter also and therefore there should have been a correct computation of the amounts. The order is a non-speaking order which is required to be sent back for de novo consideration on the various points raised by the revenue which have been recorded by Member (T). Without due adjudication, in my humble opinion, it is not proper for the Bench to allow the revenue's appeal as the impugned order itself suffers from several infirmities.
15. As regards the finding given by the Commissioner that the impugned documents are required to be considered as "manual' in loose-leaf form requiring to grant of CN 25/95 dated 16.3.95 is concerned, I am also of the view that the matter has to go back for de novo consideration as there is no detailed finding on the classification and with regard to the benefit of notification in terms of description found in the CN 25/95 dated 16.3.95. The finding of the Commissioner is cryptic and non-speaking and hence matter requires re-adjudication so that entire points raised by the Revenue are met with by the respondents by filing a detailed reply alongwith documents, if necessary, to support their pleas. In that view of the matter, the impugned order is required to be set aside and matter remanded for de novo consideration and the original authority shall permit the respondents to produce necessary documents and the Commissioner shall record a detailed speaking order in terms of principle of natural justice. Ordered accordingly.
In view of the difference of opinion between the Members, the following question arises for determination by Third Member : "Whether the Revenue's appeal is required to be allowed as held by Member (Technical) in his order; the appeal is required to be allowed by remand for de novo consideration in terms of findings recorded by Member (Judicial)." 1. The short point to be considered in this appeal is whether the item "Technical Know-how" imported by the assessee is eligible for the benefit or not in terms of the Customs Notification No. 25/95 dated 16.3.95.
2. On hearing the both sides with reference to the difference of opinion and on perusal of the records. I find that the Commissioner has decided the issue in favour of the assessee holding that the item in question is eligible for the benefit in terms of the Notification No.25/95 dt. 16.3.95. Not being satisfied with the findings given by the Commissioner, the Revenue has filed an appeal before the Tribunal. The Departmental Representative in support of the grounds of appeal, emphasised that in view of the decision of the Supreme Court in the case of CCE, New Delhi v. Parasampuria Synthetics Ltd., 2001 (77) ECC 449 (SC) : 2001 (98) ECR 185 (SC) the impugned item is not eligible for the benefit in terms of the aforesaid notification.
3. Shri Murugappan, Ld. Counsel appearing for the assessee submitted that the decision referred to above is in favour of the assessee and further more, whether the item in question attracts duty or not has not been properly examined with reference to the ruling given by the Supreme Court in the instant case.
4. Both sides drew my attention to para 17 of the Apex Court judgment which is as under: 17. In any event, one of the basic cannon of interpretation of statute is that the Legislature, intends to ascribe the ordinary common parlance and meaning to the words used therein. In the matter under consideration, the Legislature has used the word 'printed books' and clarified it by inclusion of covers-the intent thus seems to be rather obvious to mean books in ordinary sense and not any other meaning. The Legislature has also included 'printed manuals' and explained it by express words "including those in the loose leaf form with binder'. Can the articles imported be termed to be 'printed manuals' in loose leaf form with binder. Unfortunately, the answer cannot be in the affirmative. It contains specifications in terms of a technology transfer agreement, it is not a collection of various articles in trade journals but a definite importation of technology transfer which obviously was not intended to mean by the user of the word 'manual'. The word 'manual' means and implies a small book for handy use and includes a reference book, a hand-book as also text book (vide Concise Oxford Dictionary) and on attribution of the same meaning, the words used by the Legislature cannot identify a product of technology transfer between two countries. Ordinary common parlance ought to be attributed for the expressions used by the Legislature and on 'attribution thereof one cannot possibly come to a conclusion that the Exemption Notification ever aimed at extending the meaning to the extent as has been effected by the Tribunal. The decision of this Court in the case of Scientific Engineering (supra) has been totally misread and misapplied in the contextual facts--Scientific Engineering (supra) on the contrary lends all possible credence to the contentions as propagated by the appellants and not the Respondents. The decisions, of this Court in the case of CCE, Baroda v. Indian Petro Chemicals, 1997 (92) ELT 33 (SC) and HCL Limited v. CC, New Delhi 2001 (76) ECC 11 (SC) : 2001 (130) ELT 405 (SC) do not in any lend any support to the contentions of the respondent herein by reason of the special fact situation as above and in any event we are not concerned with two notifications, one of which confers benefit on to the assessee.
Thus, reliance thereon is totally misplaced in the facts of the matter under consideration.
In that case the Apex Court has held that the Legislature has also included "Printed Manual" and explained it by express words "including those in the loose leaf form with binder". Whether the impugned item is in conformity with the observations made by the Supreme Court in the aforesaid case requires to be examined. It was also submitted by both sides that there is no clear findings by the Commissioner on the point at issue. It was also brought to my attention that the decision referred to above was neither placed before the Commissioner nor considered by him. In view of this position, it is more appropriate, that this matter will have to go back for re-consideration according to the view expressed by the Member (Judicial) for examining the issue afresh in view of the observations made by the Supreme Court.
Accordingly the view expressed by the Member (Judicial) is concurred with. Registry is directed to place this file before the Original Bench to puss an order accordingly.
In terms of the majority order the impugned order passed by Commissioner of Customs is set aside and the matter is remanded for de novo consideration.