Full Judgment
2. Whether Control Panel is classifiable under Tariff Item 68 as claimed by the assessee or under Tariff Item 45 as per the department is the issue to be considered in this case.
3. When the matter was posted for hearing, none appeared on behalf of the appellants. However, it was requested by them to decide the case on merits. Accordingly, we proceed to pass this order after hearing Shri D.S. Negi, ld. DR.4. It was submitted by the appellants in their written submissions that classification filed by the party in classifying the item under Tariff Item 68 was duly approved and subsequently in view of the audit objection, show cause notice was issued that Control Panel is classifiable under old Tariff Item 45 on the ground that they had a built-in-'Weighing Electronic' for measuring loads. It was the contention of the party that the Control Panel could not be independently function to determine the rate of flow and total weight and in that sense it cannot be considered as weighing machine as specified under Item No. 45. Tariff Item 45 reads as under : Item No.45 : Weighing Machines____________________________________________________________________________Item No. Tariff Description Rate of Duty____________________________________________________________________________45 Machinery and appliances for Fifteen per cent ad determination of weight including valorem.Explanation : This item does not include scales having arms of equal length which determine weight by balancing the object against weight.
5. The party has filed an affidavit of Commercial Executive before the Collector (Appeals) in support of their contention that Control Panels could not function independently to determine the rate of flow and total weight. This affidavit has not been accepted by the Collector (Appeals) on the ground that neither any qualification or speciality of the Commercial Executive nor any documentary evidence in this regard has been indicated in the said affidavit. Before us, the party files an additional affidavit by Shri K.G. Patel, Works Manager. In the affidavit of Shri Patel, it was submitted that the purpose of the Control Panel to be used along with Vibrating Feeder is to feed the bulk material from the hopper/silos without interruption and has nothing to do with determination, control and/or monitoring, directly or indirectly, the weight of the material. Since they are filing an additionl evidence before us and the authorities below have had no opportunity to go into this additional evidence, we are remanding the matter to the concerned Commissioner (Appeals) to examine this issue afresh taking into consideration the additional affidavit of Shri K.G.Patel and to pass and order in accordance with law after providing an opportunity to the appellants. The appellants may make vise of this opportunity and produce technical literature, if any, apart from the above affidavit in support of their contention. Thus, this appeal is allowed by way of remand.