L.M.L. LTD.versusCOMMISSIONER OF CUSTOMS

                         [2010] 12 S.C.R. 80


A                             L.M.L. LTD.
                                   v.
                  COMMISSIONER OF CUSTOMS
                  (Civil Appeal No. 3764 of 2003)

                       SEPTEMBER 21, 2010
B
      [DR. MUKUNDAKAM SHARMA AND ANIL R. DAVE,
                        JJ.]

         Customs Tariff Act 1975:
c
        Customs Tariff Headings 49. 06 and 49. 11; Sub-Heading
    8524.39 and 8524.90 - 'CD ROM' containing images of
    drawing and designs of engineering goods - Classification of
    - Held: Not classifiable under Tariff Heading 49. 06 or 49. 11
0   as other printed matter - Alternative plea for classifying the
    same under Sub-Heading 8524.39 or 8524.90 not acceptable
    - Thus, assessee not entitled for the benefit of Nil rate of duty
    under Notification No. 1712001 dated 1. 3. 2001 - Notifications.

         Classification of goods - Interference by Supreme Court
E   - Held: Classification of goods involves technical and
    scientific evaluation and analysis - Unless there is something
    patently wrong while classifying a particular product,
    interference not called for.

F      'Software' and 'data' - Distinction between - Held:
  Software is a set of instructions that allows physical hardware
  to function and perform computations in a particular manner
  - Data is information that performs no computation and gives
  no enabling instructions to computer hardware but is ready
G for processing by computer software.

       The question which arose for consideration in this
    appeal was whether a 'CD ROM' containing images of
    drawings and designs of engineering goods was
H                           80
    L.M.L. LTD. v. COMMISSIONER OF CUSTOMS              81


classifiable under Customs Tariff Headings 49.06 or 49.11     A
of the First Schedule to the Customs Tariff Act 1975 or in
the alternate under Sub-Headings 8524.39 or 8524.90.

    Dismissing the appeal, the Court
                                                              B
     HELD: 1. CD-ROM containing images of drawings
and designs of engineering goods are not classifiable
under the Tariff Heading 49.06 or under the Heading 49.11.
as other printed matter. The alternative plea of the
appellant for classifying the same under Sub-Heading          C
8524.39 or 8524.90 of the Tariff is also not acceptable.
Therefore, the appellant is not entitled for the benefit of
Nil rate of duty under Notification No. 17/2001 dated
01.03.2001. [Para 27] [95-C-D]

     2.1 The products fall under Heading 49.06 only if        D
consisting of originals drawn or written by hand or of
photographic reproductions on sensitized paper and
carbon copies of such originals. The use of the word
'only' in the HSN Explanatory Notes goes to show that
the said Heading was meant exclusively for that purpose       E
alone and not otherwise. The qualification that the plans
and drawings have to be originals drawn by hand has to
be construed strictly and cannot be given a liberal and
wide meaning. The drawings and designs of the
engineering goods in issue are not originals drawn by         F
hand but are images of drawings and designs which
have been loaded or recorded on a CD ROM. There is no
question of considering the said images in the CD ROM
as photographic reproductions on sensitized paper or
carbon copies of photographic reproductions. Thus,            G
images of drawing and designs of engineering goods
recorded in the CD ROM would not fall within the domain
of Heading of 49.06. The Explanatory Notes under the
Harmonized Commodity Description and Coding System
issued by the World Customs Organization popularly            H
    82      SUPREME COURT REPORTS            [201 OJ 14 (S.C.R.

A referred to as the HSN Explanatory Notes also supports
  the view. [Paras 9, 10 and 11] [89-G; 88-G-H; 89-A-B]

        Collector of Central Excise, Shillong Vs. Wood Crafts
    Products Ltd (1995) 3 SCC 454, referred to.
B
      2.2. Heading 49.11 is in the nature of a residuary entry
  and covers all printed matter not more particularly
  covered by any of the other Headings of Chapter 49. In
  general, Chapter 49 is intended to include goods that are
  executed in paper. Chapter Note 2 contemplates any
C printing produced under the control of a computer, but
  to include the images of drawing and designs of
  engineering goods recorded in the CD ROM within
  Heading 49.11 on the basis of the said Chapter Note
  would be incongruous. The scope of Heading 49.11 is
D completely different. In any case, Chapter Note 2 would
  not be attracted. The images of drawing and designs of
  engineering goods recorded in the CD ROM would not
  be covered under any of the Sub-Heading under 49.11.
E [Para 13] [90-F-H; 91-A-B]

       2.3 Under the Notification 17/2001 Cus dated
  01.03.2001, the Central Government exempted the goods
  of the descriptions as specifically mentioned in the table
  from payment of duty. The Compact Disk Read Only
F Memory (CD-ROM) as it is, is made duty free and not a
  disc containing certain drawings and designs and,
  therefore, the said goods would not be covered by
  Chapter 85. [Paras 14 and 15] [91-C-E]

G     2.4 Software is the set of instructions that allows
  physical hardware to function and perform computations
  in a particular manner, be it a word processor, web
  browser or the computer's operating system. These
  expressions are in contrast with the concept of hardware
H which are the physical components of a computer
    L.M.L. LTD. v. COMMISSIONER OF CUSTOMS               83


system, and data, which is information that performs no        A
computation and gives no enabling instructions to
computer hardware but is ready for processing by the
computer software. [Para 19] [92-F-G]

   Advanced Law Lexicon (3rd Ed.); Britannica Concise          B
Encyclopedia; Merriam-Webster Dictionary, referred to.

      2.5 In the instant case, the data are images of
 drawings and designs intended to be used for
 engineering projects. Such engineering drawings and           C
 designs do not provide instructions for the computer
 hardware to perform. At best, the said drawings and
 designs can be said to be the by-products and oµtputs
 of the computer software, which generate the designs
 and drawings. Therefore, such engineering drawings or
 designs data in a CD cannot be placed in the catego,.Y        D
 of the term 'software'. The engineering drawings and
 designs contained in a CD ROM would not be covered
·under Heading 85.24 of the Tariff. Such a case also does
 not fall under the sub-heading 8524.99, i.e., "Other", as
 the same must be relatable to all those which are said to     E
 be under the Main Heading 85.24. Sub-Heading 8524.99
 includes, inter alia, recorded media (excluding discs for
 laser reading systems, magnetic tapes and cards
 incorporating a magnetic stripe) for reproducing
 representations of sound or images in addition to             F
 instructions and data, recorded in a machine readable
 binary form and capable of being manipulated or
 providing interactivity to a user, by means of an automatic
 data processing machine. The Harmonious System of
 Nomenclature (HSN), which is a safe guide for                 G
 classification supports such a view. [Paras 20, 21 and 22]
[92-H; 93-A-F]

    Associated Cements Companies Ltd. Vs. Commissioner
of Customs 2001 (128) ELT-21 (SC); Commissioner of             H
    84      SUPREME COURT REPORTS             (2010] 12 S.C.R.


A Central Excise, Pondicherry Vs. ACER India Ltd. (2004) 8
  SCC 173; Commissioner of Customs, Chennai Vs.
  Pentamedia Graphics Ltd. (2006) 9 SCC 502, distinguished.

      3. The adjudicating authority, the Commissioner
8 (Appeals) and the tribunal rejected the classification
  sought by the appellants. Classification of goods involves
  technical and scientific evaluation and analysis.
  Therefore, it is important that unless something patently
  wrong is demonstrated while classifying a particular
c product this Court should not interfere. [Para 28) [95-D-
  F]

         Commissioner of Central Excise, Delhi Vs. Carrier
    Aircon Ltd. (2006) 5 SCC 596, relied on.

D                       Case Law Reference:
     (1995) 3 sec 454          Referred to.          Para 12
     2001 (128) ELT-21 (SC)    Distinguished.        Para 23
     (2004) 8 sec 173          Distinguished.        Para 25
E
     (2006) 9 sec 502          Distinguished.        Para 26
     (2006) 5 sec 596          Relied on.            Para 28
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
F   3764 of 2003.

        From the Judgment & Order dated 31.01.2003 of the
    Customs, Excise & Gold (Control) Appellant Tribunal, New
    Delhi in Customs Appeal No. C/617/2002-NB (B).
G
        R. Santhanam, Rajendra Singhvi, Kaushal K.L. Gautam,
    Ashok Kumar Singh for the Appellant.

      Parag Tripathi, ASG, T.A. Khan, Rahul Kaushik, Kunal
  Bahri, B. Krishna Prasad, Manish Raghav, Aruneshwar Gupta,
H Lekhraj Sharma for the Respondent.
    L.M.L. LTD. v. COMMISSIONER OF CUSTOMS                        85


     The Judgment of the Court was delivered by                         A
       DR. MUKUNDAKAM SHARMA, J. 1. An application
being I.A. No. 3 was filed in this appeal and the same was
allowed by this Court vide Order dated 26/02/2004. The dispute
in the present appeal is between the customs authority and the
                                                                        8
assessee regarding liability to pay duty by the appellant. The
Airport Authority of India has absolutely no role to play in the
said dispute. The I.A. No. 3 was filed only because the
consignment imported by the appellant is in the custody of the
Airport Authority of India since 29.01.2002 but that cannot be
a ground to allow the applicant to take part in the dispute of          C
liability or otherwise of the appellant to pay the duty that is being
decided in this appeal. We, therefore, do not wish to hear the
applicant on the dispute between the parties as the contentions
raised in the application have no relevance at all with the dispute
which we have been called upon to resolve. The issue that is            D
sought to be raised by the intervener could be a separate
cause of action. We, however, clarify that we have not passed
any adverse order against the intervener in our Judgment and
Order passed today. Nothing further is required to be stated in
so far the applicant is concerned.                                      E

     2. The classification of "CD ROM" containing images of
drawing and designs of engineering goods is the issue of
dispute in the present Appeal. The present Appeal assails the
judgment and order dated 31.1.2003 passed by the Customs
                                                                        F
Excise and Gold, (Control) Appellate Tribunal (referred to herein
as "CEGAT") which rejected the plea of the appellant that CD-
R OM conta~ning images of drawings and designs of
engineering goods was classifiable under the Tariff Heading
49.06 of the First Schedule to the Customs Tariff Act 1975
(hereinafter referred to as the 'Tariff Act') as drawings for           G
engineering purposes or under heading 49.11 as other printed
matter. The alternative plea of the appellant for classifying the
same under Sub-Heading Nos. 8524.39 or 8524.90 of the Tariff
was also not accepted. Incidentally, the aforesaid stand taken
                                                                        H
    86       SUPREME COURT REPORTS                  [2010] 12 S.C.R.


A by the CEGA T was by way of confirmation of the view taken
  by the Commissioner-Appeals.

       3. The appellant herein filed a Bill of Entry No. 369686
  dated 29.1.2002 for clearance of the goods at Nil rate of duty
  by claiming classification of the goods under the Tariff Heading
B 4906.00 read with Central Excise Tariff Heading 4901.90
  coupled with the benefit of Nil rate of duty under Notification No.
  17/2001 dated 1.3.2001. The import was made in the month
  of January, 2002 and the authorities were requested by the
  appellant to allow the clearance of the goods at Nil rate of duty.
C The Adjudicating Officer, however, decided the case against
  the appellant holding that the latter is not entitled to the aforesaid
  classification as claimed. The adjudicating authority recorded
  a finding that the imported goods are covered under Central
  Excise Tariff Heading 8524.90.
D
       4. Being aggrieved by the said order, the appellant filed
  an appeal before the Commissioner of Customs (Appeals)
  Airport, Mumbai, which however came to be dismissed by order
  dated 15.11.2002. The appellant, thereafter, filed an appeal
E before the Tribunal wherein again the appellant claimed that the
  imported goods should be held as entitled to Nil rate of duty.
  The Tribunal, however, by the impugned judgment and order
  dismissed the said appeal as against which the present appeal
  has been preferred.

F      5. Mr. R. Santhanam, learned counsel appearing for the
  appellant has taken us through the heading Nos. 49.06 and
  49.11 and relying on the same submitted that the CD-ROM
  imported by the appellants containing drawings and designs
  of engineering goods and documents of title of the drawings
G and designs representing the right to use information and
  technology would be covered under one of the aforesaid
  headings and would therefore call for Nil rate of duty. He also
  made an alternative submission that even if it is held that the
  aforesaid drawings and designs contained in the CD-ROM
H
    L.M.L. LTD. v. COMMISSIONER OF CUSTOMS                     87
          [DR. MUKUNDAKAM SHARMA, J.]
does not fall under the aforesaid classification of heading, the     A
same would at least qualify for Nil rate of duty under the heading
85:24. __

     6. Mr. Parag P. Tripathi, learned Additional Solicitor
General appearing for the respon_dent, however, refuted the
                                                                     8
aforesaid submission and conten-ded tb_at a CD-ROM can
never be covered under Chapter 49 and thal-th~ definition of
printed will not apply to CD-ROM and also that iCwill a~so not
be covered under the Heading 85.24 as claimed by,the
appellant. It was also submitted by him that when there is      a",,
specific heading in Chapter 85 covering the impugned product,        C·
the said heading is to be preferred and not any other heading.

    7. In order to appreciate the contention of the counsel
appearing for the parties, we have considered the rival
Headings of the Tariff on which reliance is placed by the counsel    D·
appearing for the parties which read as follows:-

      Chapter 49 - Printed books, newspapers, pictures and
              other products of the printing industry;
              manuscripts, typescripts and plans
                                                                     E
      49.06    Plans and drawings for architectural,
               engineering,      industrial,   commercial,
               topographical or similar purposes, being
               originals drawn by hand; hand-written texts;
               photographic reproductions on sensitized paper        F
               and carbon copies of the foregoing.

     49.11     Other printed matter, including printed pictures
               and photographs

     Chapter 85 - Electrical machinery and equipment and             G
             parts thereof; sound recorders and reproducers,
             television image and sound recorders and
             reproducers, and parts and accessories of such
             articles
                                                                     H
    88      SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A        85.24     Records, tapes and other recorded media for
                   sound or other similarly recorded phenomena,
                   including matrices and masters for the
                   production of records, but excluding products of
                   Chapter 37.
B
         8524.39 Other

         8. Although certain, alternative arguments have been
    made as well, we would like to consider initially as to whether
    the goods in question could be said to be covered under the
C   heading 49.06 or 49.11 in any manner.

          9. Chapter 49 deals with printed books, newspapers,
    pictures and other products of the printing industry; manuscripts,
    typescripts and plans. Heading 49.06 covers within its fold
D   plans and drawings for architectural, engineering, industrial,
    commercial, topographical or similar purposes, being originals
    drawn by hand; hand-written texts; photographic reproductions
    on sensitized paper and carbon copies of the foregoing.
    Heading 49.09 will cover drawing used for engineering or other
E   similar purposes and hence will also cover within its ambit
    designs of engineering goods. The only caveat imposed by
    Heading 49.06 is that the said plans or drawings have to be
    originals drawn by hand. The qualification that the plans and
    drawings has to be originals drawn by hand has to be construed
    strictly and cannot be given a liberal and wide meaning. There
F   is no dispute that the drawings and designs of the engineering
    goods in issue are not originals drawn by hand but are images
    of drawings and designs which have been loaded or recorded
    on a CD ROM. Further, there is no question of considering the
    said images in the CD ROM as photographic reproductions on
G   sensitized paper or carbon copies of photographic
    reproductions. Thus, images of drawing and designs of
    engineering goods recorded in the CD ROM will not fall within
    the domain of Heading of 49.06.

H        10. The Explanatory Notes under the Harmonized
    L.M.L. LTD. v. COMMISSIONER OF CUSTOMS                      89
          [DR. MUKUNDAKAM SHARMA, J.]

Commodity Description and Coding System issued by the                 A
World Customs Organization popularly referred to as the HSN
Explanatory Notes also supports our view. The HSN
Explanatory Notes to Heading 49.06 of the Harmonized
Commodity Description and Coding System which is worded
in a language identical to Heading 49.06 explains as under:           B

     "49.06 Plans and drawings for architectural, engineering,
     industrial, commercial, topographical or similar purposes,
     being originals drawn by hand; hand-written texts;
    .photographic reproductions on sensitized paper and
     carbon copies of the foregoing.
                                                                      c
     This heading covers industrial plans and drawings the
     purpose of which, generally, is to indicate the position and
     relation of parts or features of buildings, machinery or other
     constructions either as they exist, or for the guidance of       D
     builders or manufacturers in their construction (e.g.,
     architects' or engineers' plans and drawings). The plans
     and drawings may include specifications, directions etc.,
     printed or not.
                                                                      E
    "****** ******                 ******            ****** ******

     ****** ******                 ******            ****** ******

     It should be noted that such products fall in the heading
     only if consisting of originals drawn or written by hand, or     F
     of photographic reproductions on sensitized paper or of
     carbon copies of such originals.

     11. It is thus clear that .prodllcts fall under Heading 49.06
only if consisting of originals drawn or written by hand or of        G
photographic reproductions on sensitized paper and carbon
copies of such originals. The use of the word "only" in the HSN
Explanatory Notes goes to show that the said Heading was
meant exclusively for that purpose alone and not otherwise.

     12. In Collector of Central Excise, Shillong Vs. Wood            H
    90      SUPREME COURT REPORTS                 [2010] 12 S.C.R.


A   Crafts Products Ltd. reported in (1995) 3 SCC 454, it was held
    by this Court that as expressly stated in the statements of
    objects and reasons of the Central Excise Tariff Act, 1985, the
    Central Excise Tariffs are based on the Harmonious System
    of Nomenclature (HSN) and the internationally accepted
B   nomenclature was taken into account to reduce disputes on
    account of tariff classification. Accordingly, for resolving any
    dispute relating to tariff classification, a safe guide is the
    internationally accepted nomenclature emerging from the
    Harmonious System of Nomenclature (HSN). Although, the
C   decision in the case of Woodcraft Products (supra) dealt with
    the interpretation of the provisions of the Central Excise Tariff
    there can be no doubt that the HSN Explanatory Notes are a
    dependable guide even while interpreting the Customs Tariff.

          13. The Counsel appearing for the appellant also urged
D   that the said CD ROM could and would fall under Heading
    49.11. Heading 49.11 covers within its compass "other printed
    matter, including printed pictures and photographs". Specific
    reliance was placed on 4911.99 which Sub-Heading states
    "Other". This argument is based on the definition of "printed"
E   in Chapter Note 2 to Chapter 49. Chapter No. 2 of Chapter
    49 provides - "for the purposes of Chapter 49, the term
    "printed" also means reproduced by means of a duplicating
    machine, produced under the control of a computer,
    embossed, photographed, photocopied, thermo-copied or
F   typewritten". In the said Chapter Note goods produced under
    the control of a computer has been defined to mean printed.
    We are not impressed with this argument. Heading 49.11 is
    in the nature of a residuary entry and covers all printed matter
    not more particularly covered by any of the other Headings of
G   Chapter 49. In general, Chapter 49 is intended to include
    goods that are executed in paper. Chapter Note 2
    contemplates any printing produced under the control of a
    computer, but to include the images of drawing and designs
    of engineering goods recorded in the CD ROM within Heading
H   49.11 on the basis of the said Chapter Note would be
   L.M.L. LTD. v. COMMISSIONER OF CUSTOMS                   91
         [DR. MUKUNDAKAM SHARMA, J.]
incongruous. The scope of Heading 49.11 is completely A
different. In any case, we do not agree with the argument that
Chapter Note 2 would be attracted in the instant case. We are
of the view that the images of drawing and designs of
engineering goods recorded in the CD ROM will not be
covered under any of the Sub-Heading under 49.11.              ·B

     14. An alternative argument was made by the counsel
appearing for the appellant that if it is held that the CD-ROM
in question is not covered by the Chapter 49, it would still be
covered under the main heading of Chapter 85. According to
the counsel appearing for the appellant, Chapter 85 would also    C
include Compact Disk Read Only Memory (CD-ROM) for
which, the rate of duty provided is Nil. It may be mentioned
herein that under the Notification 17 I 2001 Cus dated
1.3.2001, the Central Government exempted the goods of the
descriptions as specifically mentioned in the table from          D
payment of duty.

     15. What is made duty free is the Compact Disk Read
Only Memory (CD-ROM) as it is and not a disc containing
certain drawings and designs and therefore, the contention of     E
the counsel appearing for the appellant that the goods, in
question, would be covered by Chapter 85 is also not found
tenable.

      16. Further reliance was placed by the counsel appearing
for the appellant on Serial No. 285 of Notification 17 I 2001     F
Cus dated 1.3.2001 under the column "chapter or heading No.
or sub heading No." which is shown in the table as 49 or 85.24
and for which the description of goods are as follows:-

            "i.   The following goods namely:-                    G
                  Information Technology software, and
                  Document of title conveying the right to use
                  Information Technology software.

            ii.   Explanation                                     H
    92       SUPREME COURT REPORTS                 (2010] 12 S.C.R.


A                iii.   "Information Technology software" means any
                        representation of instructions, data, sound or
                        image including source code and object
                        code, recorded in a machine readable form,
                        and capable of being manipulated or
B                       providing interactivity to a user, by means of
                        an automatic data processing machine."

         17. Therefore, now the question which arises for
    consideration in this case is whether the disc in question, with
C   designs and drawings of the engineering goods could be said
    to be information technology software, as was submitted by the
    counsel for the appellant.

         18. The term software is defined by the Advanced Law
    Lexicon (3rd Ed.) as "distinct from hardware, the computer
D   program enabling a computer to function". The same
    expression software is also defined in Britannica Concise
    Encyclopedia as "the entire set of programs, procedures and
    routines associated with the operation of a computer system,
    including the operating system". We have also considered the
E   meaning of the word "software" given by the Merriam-Webster
    Dictionary as "the entire set of programs, procedures and
    related documentation associated with a system and especially
    a computer system; specifically computer programs.

         19. The aforesaid definitions, therefore, make it crystal
F   clear that software is the set of instructions that allows physical
    hardware to function and perform computations in a particular
    manner, be it a word processor, web browser or the computer's
    operating system. These expressions are in contrast with the
    concept of hardware which are the physical components of a
G   computer system, and data, which is information that performs
    no computation and gives no enabling instructions to computer
    hardware but is ready for processing by the computer software.

         20. In the light of the aforesaid background, the question
H   that arises for our consideration is whether the data in a
    L.M.L. LTD. v. COMMISSIONER OF CUSTOMS                         93
          [DR. MUKUNDAKAM SHARMA, J.]

compact disk falls within the meaning of the term software. It           A
is needless to reiterate that data at issue in this case are
images of drawings and designs intended to be used for
engineering projects, therefore, the core· issue to decide is
whether such drawings, designs intended to be used for
engineering projects be termed "software" so as to entail the            B
benefit of the aforesaid Notification 17 I 2001 Cus dated
1.3.2001.

     21. There can be no doubt that such engineering drawings
and designs do not provide instructions for the computer                 C
hardware to perform. At best, the said drawings and designs
can be said to be are by-products and outputs of the computer
software, which generate the designs and drawings. Therefore,
such engineering drawings or designs data in a CD cannot be
placed in the category of the term '.'s9ftware". It is th'erefore held   D
that the engineering drawings and designs contained in a CD
ROM will not be covered Heading 85.24 of the Tariff.

     22. Such a case also does not fall under the sub-heading
8524.99, i.e., "Other", as the same must be relatable to all those
which are said to be under the Main Heading 85.24. Sub-                  E
Heading 8524.99, includes, inter alia, recorded media (ex
luding discs for laser reading systems, magnetic tapes a
d cards incorporating a magnetic stripe) for reproducing
representations of sound or images in addition to instructions
and data, recorded il1 a machine readable binary form and                F
capable of being manipulated or providing interactivity to a user,
by means of an automatic data processing machine. As stated
earlier the Harmonious System of Nomenclature (HSN), which
is a safe guide for classification, also supports such a view.

     23. Reliance was placed by the learned counsel appearing            G
for the appellant on the decision of Associated Cements
Companies Ltd. Vs. Commissioner of Customs reported in
2001 (128) ELT-21 (SC). The aforesaid is a decision of this
Court wherein the issues urged were four which were
specifically noted in paragraph 11 ·of the said judgment;                H
    94       SUPREME COURT REPORTS                [2010] 12 S.C.R.


A        "11. In these appeals, the learned counsel for the
         appellants urged four contentions wh;ch had been
         unsuccessfully raised before the TribJr~: These
         contentions were (i) Excise duty cannot be lev1ec on the
         value of ideas as they are not goods; (ii) Even if what was
B        imported were goods, the valuation of the same has to be
         nominal; (iii) the show cause notices were issued were
         barred by time inasmuch as the extended period of
         limitation of five years would not be available on the facts
         of the present case; (iv) the imports through the courier
c        could not be governed by Heading No. 98.03 of the
         Customs Tariff Act. The learned Additional Solicitor
         General, in his able manner, supported the Tribunal's
         decision."

       24. A bare perusal of the aforesaid issues which were
D urged would make it apparently clear that the issues urged and
  the points decided therein are not comparable to the one which
  arises for our consideration in the present appeal. This decision
  is no way relatable with interpretation of Headings 49 and 85.
  The facts are distinguishable and therefore, the aforesaid
E decision relied upon by the counsel appearing for the appellant
  has no application.

         25. Similarly, in Commissioner of Central Excise,
    Pondicherry Vs. ACER India Ltd. reported in (2004) 8 SCC
F   173 although reliance was placed on the Heading 85.24 like
    the present case, but the same also cannot be said to be
    applicable to the facts of the present case as the background
    facts and the issues raised therein are totally in a different
    context.

G       26. This Court in Commissioner of Customs, Chennai Vs.
  Pentamedia Graphics Ltd. reported in (2006) 9 SCC 502
  relying on a report of an expert on the subject, held that Motion
  capture animation files or data is computer software recorded
  in a machine readable (Exabyte cartridge tapes) form and
H capable of being manipulated, but, by themselves, the files
       L.M.L. LTD. V'. COMMISSIONER OF CUSTOMS                95
             [DR. MUKUNDAKAM SHARMA, J.]
cannot be used as independent entities. In that case, the           A
subject that was dealt with was motion capture files and not
industrial drawings and designs. Such decision was rendered
being influenced totally by the opinion of the expert on the
subject. There is no such expert evidence on record. The said
decision also has no application to the facts of the present        B
case.

     27. We are therefore of the view that CD-ROM containing
images of drawings and designs of engineering goods are not
classifiable under the Tariff Heading 49.06 or under Heading C
49 .11 . as other printed matter. The alternative plea of the
appellant for classifying the same under Sub-Heading 8524.39
or 8524.90 of the Tariff is also not acceptable. The Appellant
is therefore not entitled for the benefit of Nil rate of duty under
                                                         1
Notification No. 17/2001 dated 1.3.2001.               ·            .
                                                                    D
     28. We would like to point out another aspect arising out
of the present Appeal. In the instant case, the Adjudicating
Authority, the Commissioner (Appeals) and the Tribunal has
rejected the classification sought by the Appellants.
Classification of goods involves technical and scientific           E
evaluation and analysis. It is therefore important that unless
something patently wrong is demonstrated while classifying a
particular product this Court should not interfere. This Court in
Commissioner of Central Excise, Delhi Vs. Carrier Aircon Lttf.
reported in (2006) 5 sec 596, has supported a similar view.         F

    29. We find no merit in this appeal, which is dismissed
accordingly. However, there shall be no order as to costs.

N.J.                                        Appeal dismissed.