ORDER
J.H. Joglekar, Member (T)
1. This appeal from Revenue was argued by Shri A.K. Chatterjee the ld. SDR and Shri Willingdon Christian the ld. Advocate appeared for the Respondents.
2. The respondent set up a project and imported plant and machinery etc., classifying the same under Heading 98.01 as it then stood. The main contract was registered. Subsequently the importers filed for registration of an additional purchase order. This was for import of data processing machine including related software such as CAD/CAM. The requisite clearance from the DGTD was also produced. The Assistant Collector examine the application for registration. He observed that the machinery sought to be imported under the additional purchase order was to be located at about 1500 KMS away from the declared plant location. He also was of the opinion that the plant capable of being imported under the project import facility was required to manufacture or produce things and could not cover machinery used for designing, testing or for rendering any technical advice or services to the buyers of the manufactures. He examined the nature of the machinery sought to be imported and differed from the DGTD, in so far as the importability under the provisions was concerned. It doing so he had taken cognizance of the judgments cited before him namely in the case of Asiatic Oxygen Ltd. v. Assistant Collector of Customs [1992 (57) E.L.T. 563 (Cal.)]. When he declined to register the additional contract, the importers filed an appeal. The Collector (Appeals) observed that the Assistant Collector had erred in deciding against the importers on the locational aspect. He observed that with the advance in information technology, the physical distances were not material. He further observed that the DGTD was the designated authority under the regulations governing the registration of contract. He observed that that agency was staffed by technically competent persons. It was his opinion that the Assistant Collector should have accepted the DGTD recommendation and the Assistant Collector had erred in differing from the approval given by the DGTD. He set aside the Assistant Collector’s order holding that the machinery sought to be imported in terms of the additional contract was entitled for project import regulations. Against this order the revenue have filed this appeal.
3. We have seen the cited judgments. We also find that a five member Bench had gone into the issue of the competence of the DGTD vis-a-vis project import regulations, in their judgment in the case of National Aluminium, Co. Ltd. v. Collector of Customs, Madras 1997 (21) R.L.T. 397]. In rendering this judgment the Bench had taken cognizance of the judgment in the case of Asiatic Oxygen Ltd. The issue before the Tribunal was identical, in the cited case also, the locational aspect was concerned but the Tribunal held that geographical distance may not always be criterion. In the cited case the Assistant Collector had held that certain machinery imported by the appellants could not qualify under the category “industrial plant” described in Tariff Item No. 84.66 which at the material time covered project imports. The issue travelled before the Larger Bench, in view of the different opinion expressed by different Benches of the Tribunal. The Tribunal took cognizance of each judgment as also that of the Calcutta High Court. The Larger Bench relying upon the Supreme Court decision in the case Jacsons Thevara v. C.C. and C.E. [1992 (61) E.L.T. 343 (S.C.)] distinguished the cited judgment of the Calcutta High Court in the case of Asiatic Oxygen Ltd. and held that wherever the issue involved was of classification of the imported goods, the judgment of the Customs authorities prevailed over that of licensing authorities of advisory authorities. Shri Chatterjee had to be held that the various conditions in the regulation lead to the classification of goods under Tariff Entry 98.01 and therefore the issues relating to project import were necessarily having a bearing on the clarification. We accept his logic and hold that the Assistant Collector was within his right to question of clearance, (although the letter calls it a recommendation) given by the DGTD.
4. On this observation we hold that the appeal succeeds.
5. Shri Willingdon make the submission that it is agreed that the loca-tional aspect is not important enough to deny the benefit of the classification. He submits that the machinery involved could be established to be falling within the terminology of the particular chapter heading. He stated that this claim made before the Commissioner (Appeals) but that the Collector chose to consider only the authority in that DGTD, in terms of the notification and did not go into the merits of the imported machinery as falling under heading 98.01. He requests that the opportunity could still be given to the importers. We find merit in this request, and remand the proceedings back to the Collector (Appeals) for the limited purpose of examining the fact whether the machinery and its application is such as would fall under the terminology used in Heading 98.01.