ORDER
Harish Chander, Member (J)
1. Additional Secretary to the Government of India, Ministry of Finance, had issued a review show cause notice to M/s. Blue Star Ltd. in terms of provisions of erstwhile Sub-section (3) of Section 131 of the Customs Act, 1962. In terms of provisions of Section 131-B of the Customs Act, 1962, the said show cause notices are to be treated as appeals.
2. Briefly the facts of the case are that the respondents, M/s. Blue Star Ltd. had imported Brinell-cum-Vickers Hardness Testing Machine and had claimed the benefit of exemption Notification No. 49/78-Cus., dated Ist March, 1978 and had claimed the assessment of duty at the rate of 25% + 5% + 8% CVD. The Assistant Collector was of the view that the benefit of serial No. 7 of exemption Notification No. 49/78-Cus., dated Ist March, 1978 was only available in respect of Vickers Testing Machine and not for the Brinell-cum-Vickers Hardness testing machine and had rejected the claim of the respondents.
3. Being aggrieved from the aforesaid order, the respondents had filed an appeal before the Collector (Appeals). Before the Collector (Appeals) it was urged that the machine imported by the respondents was Brinell and Vickers Hardness Tester Model HPO 250 and the process of testing the hardness of any metal was to create an impression on the metal and measure that impression and in the case of Vickers Test, the diamond Pyramid is used for creating an identation and in the case of Brinell Test, a hardness steel ball is used to give an indentation. In both the cases, the hardness on metal was determined as per international specifications and it was also contended that the machine imported by them was Vickers Hardness Tester and the respondents were entitled to the benefit of Notification No. 49/78-Cus. The Collector (Appeals) had observed that the machine was basically devised to carry out the Vickers hardness of steels and metals and incidentally it carried out a small range of Brinell test and even that could not be considered as standard test as the machine was not designed to cover the full range of hardness testing under the Brinell’s method which goes up to 3000 kgs. He had ordered the benefit of concessional rate of duty under Notification No. 49/78-Cus., dated Ist March, 1978 was admissible to the goods imported by the respondents.
4. Being aggrieved from the aforesaid order, the revenue has come in appeal before the Tribunal.
5. Shri M.K. Sohal, the learned JDR who has appeared on behalf of the appellant, pleaded that the notification has to be construed very strictly and the terms and conditions laid down in the notification should not be interpreted in such a way that the scope of the notification is enlarged. In support of his argument, he has referred to the following judgments:-
1. 1978 ELT J 350 – Hemraj Gordhan Dass v. H.H. Dave, Asstt. Collector of Customs.
2. 1984 (15) ELT 231 – Parke Davis Indian Ltd., Bombay v. Collector of Central Excise, Bombay (CEGAT)
3. 1987(27) ELT 273 – Golden Press v. Deputy Collector of Central Excise, Hyderabad.
Shri Sohal has argued that the machine imported by the respondents performed more functions. He has pleaded that serial No. 7 of the Notification No. 49/78-Cus dated Ist March, 1978 reads as “Vickers Hardness Tester”. Shri Sohal pleaded that since the machine imported by the respondents performs more functions, the benefit of the notification could not be extended. He has pleaded for the acceptance of the appeals. Shri Sohal stated that the benefit of the notification can only be extended for doing the Vickers Test. First the product has to undergo the Brinell Test. He pleaded that if Brinell Test is prerequisite for Vickers Test, only then the benefit of the notification can be extended. He has pleaded for the acceptance of the appeals.
6. Shri G.S. Sobti, Manager of the respondents pleaded that the respondents are entitled to the benefit of Notification No. 49/78-Cus., dated Ist March, 1978. He has pleaded that Brinell Test is done for castings and forgings having rough surface, whereas the Vickers Test is done on the finished metal surface. He has pleaded that the respondents are entitled to the benefit of Notification No. 49/78-Cus., dated Ist March, 1978. Shri Sobti has referred to an earlier judgment of the Tribunal in the case of T.I. Diamond Chain Ltd. v. CC Madras vide order No. 238/89-B2 dated 18th August, 1989 and pleaded that the matter is fully covered by the judgment of the Tribunal. He has pleaded for the rejection of the appeals.
7. Shri Sohal in reply stated that in view of the judgments cited by him, the present matters are distinguishable from the earlier decision of the Tribunal. He has pleaded for the acceptance of the appeals.
8. We have heard both the sides and have gone through the facts and circumstances of the case. The facts are not disputed. The respondents had imported Brinell and Vickers Hardness Testing machine for determining the Brinell and Vickers hardness of all steels and metals under load up to 250 kgs. We have also gone through the catalogue. We have also perused the Notification No. 49/78-Cus., dated Ist March, 1978. Serial No. 7 pertains to “Vickers Hardness tester”. We have also gone through the earlier order passed by the Tribunal. In para No. 6 of the order, the Tribunal had relied on an earlier order in Appeal No. 2552/83-B2 in the case of Collector of Customs, Bombay v. Living Media India Ltd. and it was held by the Tribunal that merely because a machine can perform other functions, the benefit of the exemption cannot be denied. The Collector (Appeals) in his order had observed that the machine imported by the respondents carries out a small range of Brinell test and the same cannot be considered as a standard test as the machine is not designed to cover the full range of hardness testing under the Brinell’s method which goes up to 3000 kgs. The machine imported by the respondents is capable of testing up to 250 kgs. The machine is basically devised to carry out the Vickers hardness test of steels and metals. The judgments cited by the learned JDR do not help the appellant in any way. The machines imported by the respondents are in conformity with the description given at serial No. 7 of the Notification No. 49/78-Cus dated Ist March, 1978.
9. Keeping in view the earlier judgments of the Tribunal, we do not find any merit in these appeals. The appeals are dismissed.