Judgment:
1. M/s. Supreme Industries Ltd. have filed two applications for restoration of their Appeals No. C-329/93-B and C-333/93-B which were dismissed for non-appearance under Rule 20 of the CEGAT (Procedure) Rules vide Final Order No. C-1990-1991/97 B-2, dated 17-9-1997.
2. Shri B.N. Rangwani, ld. Consultant, submitted that they had filed three appeals against the adjudication orders passed by the Commissioner of Customs, Mumbai, involving the issue of availability of Notification No. 48/78 to the Machines imported by them; that their third Appeal No. C/764/93-B2 was posted for hearing by the Tribunal from time to time; that as the other appeals were not being posted for hearing the representative of the applicant inquired from the Registry on 2-5-2000 and they were informed about the dismissal of these two appeals for non-appearance. He further, submitted that the applicants had not received the notice as well as the final order dismissing the appeals; that, further, High Court of Gujarat in the case of Viral Ltd. v. U.O.I. - 1998 (100) E.L.T. 335 has held that the Tribunal cannot dismiss the appeals for default. He therefore, requested that these two appeals may be restored and heard along with the third Appeal C/764/93-B2.
3. Shri M.P. Singh, ld. DR opposed the prayer by submitting that the applicants have not shown that they had not received the intimation of hearing; that further, the appeals were dismissed in 1997 whereas the restoration application has been filed after 3 years in 2000.
4. We have considered the submissions of both the sides. The applicants have explained the reasons for non-appearance on the day the matter was posted for hearing. According to them they had not received the intimation of hearing. They have also explained the delay in filing the restoration application as the final order itself was not received by them. The very fact that the applicants are pursuing third appeal involving the same issue shows their interest in prosecuting the matter. We also find that the explanation offered by them appears to be genuine. Accordingly we recall our earlier order and restore the appeals to their original numbers. The third Appeal No. C-764/93-B2 is posted for hearing today itself. We, therefore, take up these two appeals also for final hearing with the consent of both the sides.
4. Shri B.N. Rangwani, ld. Consultant submitted that in all the three appeals the issue involved is whether the machines imported by them is Tool Room Precision Coordinate Jig Boring machines as claimed by the Appellants or Universal Milling Machines as held by the Collector under the impugned Orders; that the Appellate Tribunal in the case of Sheet Metal Industries v. CCE Mumbai, 2000 (40) RLT 1031 (CEGAT) has remanded the matter to the Adjudicating Authority for being referred for Technical opinion to the Central Machines Tool Institute, Bangalore.
The ld. Consultant prayed that all these matters may also be remanded to the Commissioner and they would abide by the Technical Opinion given by the Central Machines Tool Institute, Bangalore. Shri M.P. Singh, ld.DR, also agrees for remand of the matter in view of the judgment of the Supreme Court in a similar matter in the case of Sukeshan Equipment Pvt. Ltd. v. Collector of Customs, Bombay 5. We have considered the submissions of both the sides. In Sukeshan Equipments case, supra, the Supreme Court decided the issue regarding nature of the machines after referring the matter to an expert nominated by Central Machines Tool Institute, Bangalore. The Appellate Tribunal, following the said decision, remanded the matter to the adjudicating authority for referring the matter to an expert to be nominated by the Central Machines Tool Institute, in the case of Sheet Metal Industries, supra, in view of issue being highly technical.
Following the ratio of both the decisions, we remand all the three matters to the adjudicating authority with the direction to get the examination carried out by an expert to be nominated by the Central Machines Tool Institutes, Bangalore, provided the machines is in the form it was imported and with the same features subject to ordinary wear and tear over the period since theses were imported. The opinion given by the expert, so nominated will be binding on both the sides.