ORDER
G.N. Srinivasan, Member (J)
1. This is an appeal against the decision of Commissioner of Customs-I made in Order-in-Original No. CAO/NO/50/96/CAC/CCI dt. 15.3.96 in and by which he has held that the Multi Spindle Copying/Duplicating and Profile Milling Machine is not covered under Item 12 of Appendix I Part-B of EXIM Policy 85-88.
2. Appellants are manufacturers and importers of various types of machinery. The matter before me is in respect of the importation of second hand “multi spindle copying/duplicating and profile milling machine”. The item in question was imported from Italy some time in March 1986. At the relevant period the Appendix I Part-B Item No.12 of the Import Policy reads as follows:
“Multi-spindle copying/duplicating and profile milling machine”.
The machine in question consist of a vertical spindle and horizontal spindle. It is the case of the importer appellant that it directly fits in the description given in the above item so as to he eligible for import under Open General Licence mentioned in Part-B of Appendix-I of the relevant Import Policy. It is the assertion of the appellant that simultaneously both spindles can be used. It is also assertion that the appellant that term a multi machines means more than one, that is, in the machine it should have more than one spindle for purpose of milling. It is also the case of the assessee that it is not necessary that the machine should have more than one spindle in the same category that is either two vertical spindles or two horizontal spindles. As against this argument of the department is that on the basis of Chambers Dictionary of Science & Technology a multi spindle drilling machine must have two or more vertical spindle for simultaneous operation. They rely on page 780 of the said Chambers Dictionary of Science & Technology. The importers also raised the plea of what is contained in HSN page 1273 in respect of milling machine wherein interalia non-vertical milling machine. The importers also relied on the definition contained in Concise Oxford Dictionary of Current English page 77 where it is says multi means more than one.
3. When I look into the matter it would appear that the appeal was filed before the Tribunal earlier and the Tribunal by its order DT. 13.3.95 states that the evidence was neither produced before it namely the Tribunal and the Technical Book, which have been cited before us are relevant for consideration. One of the evidence was the certificate from the Assistant Professor Department of Mechanical Engineers Sardar Vallabhabhai Regional College of Engg. & Technology Surat. In the said certificate it is found as follows in respect of milling machines it has been observed as follows:
“Special purpose machines have horizontal, vertical and Angular spindles which operate either one after the other, or all at the same time.
It is the case of the appellants that spindles can be worked either one after the other that is horizontally, vertically or simultaneously at the same time. It depends upon the job on hand and it can also function in a contoured way if it is necessary so to do. As against this the department’s contention it should be only at the work only and it should only simultaneously as mentioned in page 70 of the Chambers of Science and Technology Dictionary.
4. I have considered the submissions made before me in the impugned order at pages 46 to 47 the adjudicating authority has held as follows:
“It has been stated by the learned advocate that the expert’s certificate produced must be given credence to. The appellants have produced expert’s certificate one from Mr. Naidu a chartered engineer and another from Dr. R.S. Shah, Assistant Professor of S.V.R.C.E.T.., Surat. The departmental expert also produced two experts’ certificates one from Mr. Mukesh Patel, Machine Tool India, Bombay and another from Mr. SK Shah, Empire Machine Tool Bombay.
These certificates were not actually produced at the instance of the Deptt. But produced by the appellants and departmental expert to support their arguments. Therefore, these certificates can be taken for scrutiny of any valid points, clarification that would help in the proceedings but these are not documents that will dictate for the adjudicator.
Mr. Naidu has stated in his certificate that the machine has one vertical and one horizontal spindle. He has stated that the functions of the machine is copying, duplicating and profile milling besides the job of universal milling machine. This is what the departmental expert also emphasises all along. The main function is universal milling and, therefore, basically it is universal milling machine’ Mr. Naidu also has not categorically stated it is a “multi spindle” machine. On scrutiny of certificate given by Dr. R.S. Shah it is observed he has reproduced certain portions of Text books for drilling and milling machines. When one of the disputed feature is ‘multi spindle’ he has quoted definitions for multicellur horn, multi deck table, multi colour press and multi computer system which are irrelevant for the context. His opinion that the machine is multi spindle copying/duplicating or profile milling is without any support of evidence. These two certificates are in no way supplements the arguments by the advocate.
On the contract the experts’ certificates produced by the departmental expert categorically point out that the machine with one horizontal spindle and one vertical spindle with swivelling table is universal milling machine. Mr. S.K. Shah has not only concluded that the machine is ‘universal milling machine’ giving proper reasoning but also have enclosed TOS Helin catalogues which clearly shows the arrangement of one horizontal milling machine model FKH-BOA and one vertical milling machine model FKU-123 both with two spindles which are multi spindle milling machines”.
From this what I understand that the adjudicating authority and the Commissioner has stated what is contained in Professor Shah’s evidence and omitted to mention what is contained in the same Professor Shah’s Certificate regarding the simultaneous operation as found in production technology of HMT which has been quoted by the earlier portion of the order. It is true that when I go through the evidence in the case, the evidence of the department throws certain light regarding the drilling machines. We are not concerned with multi spindle drilling machines. At best we are concerned with, we come to the point where both sides could be argued in their own way. When there is a doubt about the nature of the machines then it should be decided in the assessee’s way. In my view there is no doubt at all. The above sentence has been added in this order only in an alternative way for the following basis.
5. As extracted by me from Professor Shah’s Certificate quoting from production Technology HMT that vertical milling machine which are manufacture for special purpose can have either horizontal, vertical and angular spindle which should be operated one after the other or all at the same time. It means it should function both of them the vertically or horizontally and can be simultaneously used. Once it is established in that way, beyond doubt I definitely feel that it come within Item No.12 of the OGL list.
6. Alternatively it can also be stated when equal numbers of the evidence are available before us; it has equal emphasis for the both sides case. I am not of the view there can be only element of doubt, we are not here interpreting an exemption notification. But an entry in the Import Policy, when such a situation comes namely the doubt and it should be decided in favour of the assessee. Thee are many decisions decided in that way and one of the judgements of the Single Member decision we come across in the case of Vinod Gupta Vs. Collector of Customs [ 1988 (37) ELT 44 (Cal.)] I am, therefore, of the view that even if there be any doubt which the Customs department and the Chief Controller of Imports & Exports allegedly entertain on the question whether the rapeseeds can be imported under REP Licences in view of the provisions contained in the Import Policy, such doubt has to be resolved in favour of the petitioner and the Customs authorities, therefore, cannot withhold the release of the consignments already imported. IN other words if the interpretation of a fiscal enactment is open to doubt, the construction most beneficial to the subject should be adopted. As far as the Tribunal in the case of Commissioner of Customs Vs. Reliance Industries ltd. [ 1999 (107) ELT 494 (Tribunal)] have also held in the same way. I am therefore of the view that impugned order was wrongly decided and it is set aside and allow the appeal with consequential relief if any according to law.
(Pronounced in Court)