ORDER
P.C. Jain, Member (T)
1. Brief facts :
1.1 The appellants herein imported Bendix 3 Co-ordinate Measuring and Marking Machine and claimed assessment under Heading 90.28(4) read with Tariff Heading 90.16(1) read with benefit of Notification No. 394-Cus. of 1976. Benefit of the said notification was, however, denied without disputing the classification under Heading 90.28(4) read with 90.16(1).
1.2 The appellants, therefore, filed a refund claim for duty reiterating their claim as aforesaid. The original authority, Assistant Collector of Customs, rejected the claim vide its order-in-original No. S107-730/83 AR-8 dated 24-1-1984 observing that “the imported machine cannot be taken to be a measuring and checking instrument in its prime function. The machine, therefore, does not merit exemption from duty as envisaged in the Notification 394-Cus., dated 2-8-1976”. The original authority, however, did not elaborate as to what is prime function of the imported machine.
1.3 Appeal by the appellants herein before the Collector of Customs (Appeals), did not succeed. Collector (Appeals) findings are reproduced below :-
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2.1 Learned Advocate, Shri L.P. Asthana for the appellants has urged that the lower authorities have erred in finding that the primary function of the machine is more than measuring and checking and it is used for marking as well. He draws attention to catalogue of Bendix Portage Layout Machines wherein the applications of the machines are set out as below :-
“Due to their versatility and accuracy, applications of the equipment include precision measurement for inspection, quality control and quality assurance as well as basic layout functions…
Applications:
*Layout of large diameter parts, raw stock castings and forgings.
*Verification of accuracy of models, patterns and dies.
*Qualifying of raw stock prior to machining.
*Creating new product designs from models.
*Auto frames checked from die to final inspection.
*Dynamic qualification of cranks, cams, lobed castings and forgings.
*Programmed engine block inspection.
*Radar screen contour checking.”
2.2 He submits in view of the foregoing applications that checking and measuring of machine parts for the purpose of quality control is the primary and the sole function. Marking function of the machine is a supplemental function to make the checkings and measurement carried out on a work piece more meaningful. He, therefore, submits that the machine is fully covered by the Notification 394/76-Cus., dated 2-8-1976.
2.3 As regards the point that the notification gives exemption to articles falling under Tariff Heading 90.16 alone and not under Tariff Heading 90.28 even though the rate of duty prescribed for the latter tariff heading is the same as prescribed for Tariff Heading 90.16 in C.T.A. 1975, he submits that the question is now settled by Bombay High Court D.B. Judgment in the case of Vishal Electronics reported in 1993 (68) E.L.T. 557 (Bom.) reversing the judgment of the learned Single Judge of that High Court reported in 1989 (44) E.L.T. 420 (Bom.) in the case of the same petitioner Vishal Electronics Pvt. Ltd. He, therefore, submits that benefit of Notification 394/76, dated 2-8-1976 be extended to the subject goods and appeal be allowed with consequential relief.
3.1 Learned SDR., Shri B.K. Singh for the Revenue, on the other hand, reiterates the findings of the lower appellate authority already set out. He submits that the Notification 394/76 should be strictly read which allows benefit of lower duty to checking or measuring instrument. Function of the imported machine is to mark out the dimensions of the work piece and thereby form a layout thereof.
3.2 Regarding the other controversy on extension of benefit to goods falling under Heading 90.16 and not the goods falling under Heading 90.28, he has no comments to make in view of D.B. judgment of Bombay High Court in 1993 (68) E.L.T. 557 (Bom.).
4.1 We have carefully considered the pleas advanced on both sides. No doubt the catalogue describes the goods ‘Bendix Portage Layout Machines’, we note that the first and foremost function of the machine, ultimately helping in layout function, is precision measurement for inspection, quality control and quality assurance. Lower appellate authority’s finding that Notification 394/76 exempts instruments which are used solely for measuring is not the correct reading of the notification. The said notification exempts partially (A) Measuring instruments, and (B) Instruments used both for the purpose of measuring and checking. The notification nowhere brings in the concept of sole function of measurement, as held by the lower authority. So long as the primary function of an instrument is measuring or checking and measuring, the said instrument is entitled to the benefit of lower rate of duty. We have no doubt that the imported goods fulfil those functions, although its supplemental or additional function may also be of ‘lay out’.
4.2 Second point is no longer in controversy.
4.3 Hence we allow the appeal with consequential relief to the appellants.