ORDER
K. Prakash Anand, Member
1. In this case, appellants imported 5 cases Universal Measuring Machine with accessories. They contended that the goods would he eligible for concessional rate of duty at 25% ad valorem in terms of Notification No. 49/78-Cus. dated 1.3.1978. The benefit of this notification was refused by the Assistant Collector of Customs whose order was confirmed by the Collector of Customs (Appeals), Bombay, although he did not entirely agree with the reasons advanced by the Assistant Collector. It is against this order of Collector of Customs (Appeals) Bombay that appellants are now before us.
2. We have heard Shri M. A. Rangaswamy, advocate on behalf of the appellants and Shri K. Kumar, SDR, for the Department.
3. The learned advocate says that the issue involved in the present matter is fully covered against revenue by the decision of this Tribunal in the case of Kinetic Engineering Ltd. v. Collector of Customs, Bombay 1988(18) ECR 143 (Cegat SB-B2).
4. The learned SDR responds briefly by stating that the order of the Tribunal in the case of M/s. Kinetic Engineering Ltd. (supra} may appear to cover the point at issue. However, he would reiterate the view taken by the lower authority.
5. We have carfully considered the facts of the case and the submissions made before us. We find that in the case of M/s. Kinetic Engineering Ltd., appellants had imported a Universal Measuring Machine, which they claimed was a ‘Universal Measuring Instrument’ to check gauge, tools, jigs and components thereof including internal and external threads and. therefore, covered under S. No. 9 of Notification No. 49/78-Cus. The department’s case in that matter was that only a few accessories had been imported with the machine and that the accessories required for measuring internal and external threads had not been imported. Therefore at the time of importation, the machine could not have done the measurement listed at S. No. 9 of the notification. The department did not deny that the use of the accessaries listed in the catalogue for the imported machines would make it capable of making all the measurements listed at S. No. 9 of the relevant notification. In this context, the Tribunal held that it is the imported machine’s design capacity for measurement which matters and not the presence or absence of accessories. Accordingly, the imported goods were held to be entitled to the benefit of Notification No. 49/78 Cus.
6. The facts in this case, however, seems to be quite different. In this matter, the department’s case is that the machine imported is not accurate enough to perform all the functions enumerated under S. No. 9 of Notification 49/78. Regarding another universal measuring instrument “Validator 10”, the Madras IIT had advised that the accuracy of that instrument was not sufficient for checking gauges and precision jigs and fixtures. This is because the “readout accuracy” of Validator was either 0.005 mm or 0.01. The catalogue in this case also shews that the “readout accuracy” is 0.005 along the Y plane and 0.007 mm along X plane. Therefore, in this case also, it would follow that the accuracy was not sufficient for checking gauges and precision jigs and fixtures, the department held.
7. It would be seen, therefore, that it was only at the level of the Assistant Collector of Customs that it had been held that the machine imported could not by itself perform all the functions mentioned at S. No. 9 of Notification 49/78. The various functions, it was held, could be performed only with the help of other optional accessories. At the level of the Collector (Appeals) however, this was not a ground for refusing the benefit of Notification No. 49/78. The reason for refusing the benefit of the notification was that the machine as such did not have the accuracy necessary for checking gauges, precision jigs and fixtures. Unfortunately, this is not a point on which the learned advocate has submitted any oral arguments against the findings of the Collector (Appeals). In the appeal filed, however, it is urged that the concept of readout accuracy was introduced for the first time in the order of the Collector (Appeals). This concept did not find mention in the earlier proceedings and appellants were not given on opportunity to furnish a satisfactory and convincing reply on this point. It is urged that, this was contrary to principles of natural justice and the order of the Appellate authority should be set aside on this ground alone.
8. We have considered this aspect of the matter and we are satisfied It that the Collector (Appeals), in rejecting the claim of the appellants has taken an entirely new ground on which no opportunity has been given to appellants to explain their position. There is also no clear finding on the view taken at the level of the Assistant Collector that the machine under reference could not perform all the functions mentioned at S No. 9 of Notification No. 49/78, except with the help of other optional accessories. We find no answer in respect of these points in the order of Collector (Appeals).
9. It is also urged before us that. Validator 10, in respect of which the Madras IIT had expressed an opinion, is a very old machine and crude in design whereas the instrument imported in this case is a highly sophisticated and modern one. We do feel that if the view of Madras IIT could have been obtained in the case of Validator 10, then it could also have been obtained in respect of the instrument imported in this case also. In any case, no final view in this matter could have been taken merely on the basis of technical advice obtained in respect of Validator 10, without giving a hearing to the Importer on the issue.
10 We, therefore, set aside the order appealed against and remand the matter to the Assistant Collector for de novo consideration and adjudication after giving the importers a full opportunity to explain their case on the grounds taken against them by the department. While passing his orders, he will doubt, bear in mind the decision of this Tribunal in the case of Kinetic Engineering Ltd. (supra),
11. Appeal allowed by remand.