003-NLR-NLR-V-76-C.-KUNDANMAL-and-another-Appellants-and-THE-ATTORNEY-GENERAL-Respondent.pdf
AXLES, J.—Kundanmal v. The Attorney-General
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Present: Alles, J., and Samerawickrame, J.C. KUNDANMAL and another, Appellants, and THE ATTORNEY-GENERAL, Respondent
S. C. 68/68 [F)—D. O. Colombo, 1798/Z
Customs—Duly leviable on imported magnetic recording tapes—Whether such tapes areelectrical goods.
The Principal Collector of Customs imposed an ad valorem duty of 210 % on690 reels of magnetio recording tapes imported by the plaintiffs-appellants.The duty was imposed on the basis that the articles fell under the item“ electric lighting accessories and electrical goods not elsewhere specified ” inthe relevant Government Gazette.
Held, that, upon the evidence led in the present case, the magnetic recordingtapes were correctly classified as electrical goods and not as “ musicalinstruments ".
-A.PPEAL from a judgment of the District Court, Colombo.
C. Ranganathan, Q.G., with A. Mahendrarajah, for the plaintiffs-appellants.
Ian Wikramanayake, Crown Counsel, with P. Tennekoon, CrownCounsel, for the defendant-respondent.
Cur. adv. milt. .
June 25,1971. Aixes, J.—
The only question that arises for decision in this appeal is whetherthe learned District Judge arrived at a correct conclusion when he heldthat the Principal Colleotor of Customs was justified in imposing anad valorem duty of 210% on 690 reels of magnetic recording tapesimported by the plaintiffs into the Island on Bill of Entry No. A 1073(P 5). The basis on which this duty has been imposed is that the tapesin question are goods which fall under the tariff item—
“ electric lighting accessories and electrio goods and apparatus notelsewhere specified—
(1) Articles which in the opinion of the Principal Collector of Customsare considered to be luxury or fancy articles.”
(Vide p. 1981 of Govt. Gazette P 2)
The plaintiffs themselveB in their Bill of Entry described these tapesas “ electrical goods ” imported from New York but when the PrincipalCollector imposed the duty of 210% they paid that duty under protestwithout prejudice to their rights to recover the excess duty so paid.If the tapes are correctly classified as electrical goods the decision ofthe Principal Collector that they are to be considered as luxury or fancyarticles would be final.
IS
AIi.ES, J.—Kundanmal v. The Attorney-General
The only witness called at the trial was one Rajanayagam, an ElectricalEngineer whose expert knowledge on the mechanism and functions oftapes and tape recorders was not disputed. Rajanayagam stated thata magnetic tape consists of a plastio base of polyester on which is acoating of magnetic material. The tape is wound on a reel which isneoessary for the purpose of holding the tape on to the tape recorder.The tape recorder can record as well as play back what has been recorded.In this view magnetic tapes could not be classified within any of theitems contained in P 2 and the only possible classification would be toinclude them under the item
“Musical instruments—
Gramophones, phonographs and radiograms and componentparts and accessories”
Which only attracted an ad valorem duty of 110%. (Vide p. 1987 of P2.)Rajanayagam agreed that he would not call a tape recorder a musicalinstrument but he took the view that since a tape recorder can performthe same functions as a gramophone, phonograph and radiogram—therecording and reproducing of sound which has been recorded—the taperecorder may be classified as a musical instrument and the magnetiotape, without which the tape recorder cannot be played, would be acomponent part or accessory. The Legislature however considered itnecessary to classify, separately, gramophone aud phonograph recordswhich were subject to a duty of 75%. If, therefore, gramophone andphonograph records are not component parts or accessories of gramophonesor phonographs, a magnetio tape cannot be considered a componentpart or accessory of a tape recorder.
In regard to the classification of “ magnetio tapes ” as “electrical goodsand apparatus not elsewhere specified ” the evidence of Rajanayagam isrelevant. According to the analysis of his evidence by the trial Judge,Rajanayagam stated that—
"a tape recorder is composed of an electrical motor which is usedfor the purpose of rotating the tape. The reel or spool which is loadedrotates and the tape winds to an empty spool which also has amicrophone for the purposes of recording. In the process of recording, .the tape goes from the loaded spool through a magnetic field to thereceiving spool. The microphone receives the sound so recorded andthe sound passes through a system of valves. Once the recording isdone, we have the reverse process of playing back what has beenrecorded on the tape. There is an amplifier that amplifies what hasbeen recorded, and the sound which has been converted from themagnetio tape into an electrical form is then reconverted into soundagain for reproducing.”
SAJVCERAWICKBAME, J.—Kundanmai v. The AHomey-General
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This evidence is supported by the observations of the learned authorof the Encyclopaedia, Brittanica (Vol. 21 P 798) where dealing with theprocess of magnetio tape recording he refers to it as—
“one of the most accurate and convenient methods of storing, andlater reproducing, any type of information that can be convertedinto electrical signals. Sounds (e.g., voice and music), electrical datafrom business machines and metering devices, video signals and theelectrical impulses for the automatic control of machinery are examplesof the material commonly stored on magnetio tape.”
Magnetio tape recording is referred to by the author as “the idea ofstoring electrical information by means of magnetized particles …”I am therefore inclined to agree with the observations of the learnedtrial Judge that “ the basic requirement for operating the tape recorderapparatus is electricity. Electricity is required not. only for rotatingthe spools but also for creating the magnetic field and converting themagnetio energy to sound.” On this basis he has held that the tapesare “ electrical apparatus not elsewhere specified ”. The tariff containedin the Gazette P 2 was published in November 1963, at a time when,perhaps, tape recorders were not as popular as they are today. Thismay be the reason why tape recorders and magnetio tapes have not beenseparately classified for the purposes of duty.
Since electricity is the basis for operating tape recorders and as theplaintiffs themselves popularly understood these articles as being electricalgoods, I would agree with the finding of the learned trial Judge thatmagnetio tapes are electrical goods and dismiss the appeal with costs.
Samerawickbame, J.—'
The Principal Collector of Customs levied duty on the footing that690 reels of magnetic recording tapes fall under the item, “electriolighting accessories and electrical goods and apparatus, not elsewherespecified.” For the reasons given in his judgment by Alles, J., I am ofthe view that the tapes are electrical goods. It was the appellant’ssubmission that they do not fall under the item set out above becausethey are elsewhere specified. It was submitted that they fall underthe item headed “Musical instruments ” which is:—
PreferentialGeneral
RateRate
Ad valorem Ad valorem
11 Musical instruments—
Gramophones, phonographs and radiograms, and
component parts and accessories ….100%. .110%
Gramophones and phonograph records..66% ..76%
Other, including automatio pianos and organs and
component parts and accessories ….30%..36% ”
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SAMERAWICKR.AME, J.—Kundanmal v. The Attorney-General
Learned counsel for the respondent submitted that only instrumentsthat were used to create original music were musical instruments andthat gramophones, phonographs and radiograms were to be regarded assuch instruments in this context only because the provision expressly saidthat they were. He accordingly contended that a tape recorder was nota musical instrument. He further submitted that a tape recorderwas primarily used to record and replay sounds and not music. Learnedcounsel for the appellant submitted that any instrument that was usedeither to create music or play recorded music was a musical instrument.I am inclined to agree with this submission. There is substancethowever in the contention of the learned counsel for the respondent thattape recorders primarily record and play back sounds. The appellantshould have led evidence or placed some material before Court to showthat tape recorders are designed or used mainly to record and playmusic. There is no such evidence or material. I should not howeverbe disposed to decide the case on this point alone.
What is in question are not tape recorders but tapes used on them.The contention on behalf of the appellant is that they fell within “ other
musical instruments their component parts and accessories.”
Though tapes are used on tape recorders they are separate and distinctand cannot be considered component parts of them. The questiontherefore is whether they are accessories of tape recorders. I understandaccessories to mean such things as spare parts or tools sent with aninstrument to ensure efficient performance. Though the first item undermusical instruments is, “Gramophones, phonographs and radiogramsand component parts and accessories” the second item is, “Gramophoneand phonograph records The draftsman does not appear to haveconsidered Gramophone and phonograph records to be accessories ofgramophones and phonographs. On a parity of view, magnetic recordingtapes, particularly 690 reels of them imported apart from tape recorders,are not accessories of tape recorders. The witness called for the plaintiffstated, “ The tape itself in relation to the tape recorder, I would call acomponent and not an accessory ”. His position that it is a componentpart, as I have indicated earlier, I am unable to accept. I am thereforeof the view that on the material placed before the Court the plaintifFsfailed to establish their contention that the 690 reels of magneticrecording tapes fall under the item headed “Musical instruments”.T agree that the appeal should be dismissed with costs.
Appeal dismissed.