JOINT SECRETARY TO THE GOVT, OF INDIA, MINISTRY OF FINANCE Vs. INDIAN OIL CORPORATION LTD. (ASSAM OIL DIVISION)

JUDGEMENT

(1.) There is no statutory definition of "Computer". Thus, in terms of the observations in the case of State of Uttar Pradesh and another Vs. Kores (India) Ltd., (1977) 39 S.T.C. 8, to the effect that the word which is not defined in an enactment has to be understood in its popular and commercial sense with reference to the context in which it occurs, in this appeal from Original Order, which is directed against the judgment and order dated 14th July 1980, passed by S.C, Deb J., in Civil Revision Case No. 7418 (W) of 1972 and where the main point for consideration would be, whether "Computer", which according to Webster's New 20th Century Dictionary (Unabridged Second Edition) means a person who computes or a device used for computing, an electronic machine, which by means of stored instructions and information, performs rapid often complex calculations or complies, co-relates and selects data or a calculator, electronic calculating machine according to concise Oxford Dictionary (1974 Edition) an automatic electronic machine that performs calculations, a Computer is capable of accepting data, performing operations according to instructions (programmes) and providing result of the operation. So-called digital computer operates with numbers expressed directly as digits and counts discretely. It is contrasted with the analogue computer, which operates on data represented by variable physical quantities, such as voltages and measures continuously (operations are said to be analogue to the quantities represented), in throws of the New Encyclopaedia Britennion (1970 Edn.) and a device that receives, processes and presents informations, according to Encyolopaedia of Science and Technology, it a machine or electrical apparatus, the more so when we feel, that Computers are used or expressed to be used in such popular sense, as would appear from the meanings as given by the respective Dictionaries. It should be noted that the same view as in the case of State of Utter Pradesh and another Vs. Kores (India) Limited (supra), was also taken in the case of Commissioner of Income-Tax West Bengal Calcutta Vs. Benay Kumar, AIR 1957 S.C. 768 particularly when, in that case, it has been specifically observed that when the terms, "agriculture" and "agricultural purpose", used in the definition of "agricultural income" in section 2 (1), have not been defined in the Income-Tax Act, the Court must, necessarily fall back upon the general sense, in which they have been understood in common pariance. It should also be noted that the appellant before us was substituted in place of the original writ petitioner M/s. Assam Oil Company Limited, by an order dated 29th April 1982.

(2.) The Learned Trial Judge, by his determination as impeached, on consideration of the dictionary meaning of Computer and machine, held and observed the same to be an electronic calculating machine or an apparatus and as such, held that the same would come within the purview of Item 72 (b) and not Item 73 of the First Schedule of Import Tariff (hereinafter referred to as the said Tariff). It would be convenient, if we set out now those items of the said Tariff, as it was contended by the writ petitioners that Computer should fall under Tariff Item No. 72(b) whereas the Respondents in the Rule who are appellants before us, claimed that computers should fall or come under Tariff Item No. 73. Item 72 (b) : Machinery namely such articles as are not otherwise specified; (b) Machine and sets of machines to be worked by electric, steam, water, fire or other power, not being manual or animal labour, or which before being brought into use, require to be fixed with reference to other moving parts. Item No. 73: Electrical instruments, apparatus, and appliances, not otherwise specified (excluding telegraphic and telephonic) and part thereof not otherwise specified, and the learned Trial Judge, apart from holding as above, has further held that Tariff Item No. 73 is a residual provision and on such findings as above, made the Rule absolute.

(3.) It was the case of the Writ petitioners that they had imported a consignment of Company system in July 1968, through the Port of Calcutta and had filed Bill of Entry to the Calcutta Customs (Machinery Group) for assessment wherein they had declared the concerned goods as "Electrical appliances n.o.s." and showed the assessable value of the concerned goods as Rs. 7,73,056.42 P. and thereafter on 5th July 1968 they had also filed necessary documents for clearance of the consignment of computer out of the Customs charge and had declared the goods, inter alia, as Electrical appliances n.o.s. as mentioned above. It was also their case that in the claim application they contended that correct assessment of the subject goods should under item No. 72(b) of the said Tariff at 27 per cent ad valorem and as such, they had claimed the refund of consequential difference in duty amounting to Rs. 1,740,50.00. It was the further case of the writ petitioners that the Assistant Collector of Customs, Calcutta, by his order dated 13th June 1969, directed the consignments to be assessed to duty under Tariff Item No. 73 and on such, the subject goods were assessed at 50% as Electrical appliances.