Full Judgment
2. Briefly the facts of the case are that the appellants had imported Gear Hob-bing Machine, Model No. FK-41B from M/s. W. Ferd Klingelnberg vide Bill of Entry Cash No. 1422, dated 23rd August, 1980 and had claimed its re-assessment in terms of Notification No. 40/78. The claim was made against assessment in the Entry No. 4 of the table appended to the notification which read as "automatic straight bevel/Hypoid Gear Generating Machine. The learned Assistant Collector of Customs had gone through the literature produced by the appellants and after perusal of the same he had taken a view that the machine imported does not fall within the scope of ST. No. 4 of the table appended in the said notification inasmuch as it covers only straight bevel and Hypoid Gear Generating Machine and not spiral bevel gear machine for assessment.
Being aggrieved from the aforesaid order the appellants had filed an appeal to the Appellate Collector of Customs. Before the learned Appellate Collector of Customs it was contended that the machine imported by them produced hypoid bevel gears and were, therefore, entitled to exemption in terms of the Notification No. 40/79 as amended. The learned Appellate Collector of Customs had held that the machine imported was spiral bevel generating machine type FK-41B which was not entitled to the exemption in terms of the said notification and had rejected the appeal.
3. Being aggrieved from the aforesaid order the appellants have come in appeal before the Tribunal.
4. Shri K.V. Kunhikrishnan, the learned Consultant has appeared on behalf of the appellants. He has reiterated the facts. Shri Kunhikrishnan has argued that the appellants have imported Gear Mobbing machine and stated that Hypoid means 'Spiral'. Shri Kunhikrishnan has argued that the lower authorities had confused themselves with the three types of bevel gears. He has argued that the bevel gears are of two types, Straight and Curved and curved bevel gears are further divided into three types (a) Spiral bevel (b) Zerol bevel and (c) Hypoid gears. In support of his arguments he has referred to the Catalogue. He has also referred to the Machinery Hand Book by Industrial Press (Page No. 837) 21st Edition of 1979 which gives details of bevel gears. The same has been described in this book as conical gears that is, gears in the shape of cones, and are used to connect shafts having intersecting axes. Hypoid gears are similar in general form to bevel gears, but operate on axes that are offset. With few exceptions, most bevel gears may be classified as being either of the straight-tooth type or of the curved tooth type. The latter type includes Spiral bevels, Zerol bevels, and hypoid gears. He has also referred to the following books :- Shri Kunhikrishnan, the learned Consultant has argued that a simple perusal of the literature quoted by him and the catalogue produced by him will clearly indicate that the appellants are entitled to the benefit of Notification No! 40/78. He has pleaded for the acceptance of the appeal.
5. Shri J. Gopinath, the learned S.D.R who has appeared on behalf of the respondent has referred to the description given by the appellants in the Bill of Entry which is "Klingelnberg Automatic Spiral Bevel/Hypoid Gear Generating Machine Model FK-41B. Shri J. Gopinath has argued that the description of the imported machine has been given in accordance with the description given in the Notification No. 40/78. He has also referred to the Bill of Entry and invoice. He states that the description in the Invoice as well as the Bill of Entry is as per advise of the appellants whereas the description given in the catalogue is very different. In the catalogue the description has been given as Spiral Bevel Gear Generating Machine FK-41B. Shri Gopinath states that the technical books referred by the learned Consultant do not help him.
Shri Gopinath has argued that there was mis-declaration in the invoice and the appellants did not file the entire copy of the catalogue but only the part of the catalogue which suited them. He states that a simple perusal of the catalogue will show that the main function of the machine is not covered by the notification and as such the appellants are not entitled to the benefit of Notification No. 40/78. He has pleaded for the dismissal of the appeal.
6. Shri Kunhikrishnan, the learned Consultant has pleaded that the description given by the appellants was in good faith and no adverse inference should be drawn from the same. He has stated that the literature quoted by him fully reveals that the appellants are entitled to the benefit of Notification No. 40.78. He has pleaded for the acceptance of the appeal.
7. We have heard both the sides and have gone through the facts and circumstances of the case. We have also gone through the catalogue and the technical literature referred to by the learned Consultant. The description given on Page 3 of the Catalogue is "Being the smallest one from our series of generating machines - all operating to the same manufacturing principle and covering a range of spiral bevel gears with diameters of up to 2 metres (78") the FK-41B is intended primarily for small spiral bevel gears normally required for small machine tools, power tools and by the precision engineering industry in general. The FK-41B machine is capable of producing spiral bevel gears of diameters ranging from 4 mm to 110 mm (0.160"-4.330')." Thus the main function of the machine is for the making of small spiral bevel gears. The technical literature referred to by the appellants does not help them.
Accordingly we hold that spiral bevel gear machine FK-41B is not entitled to the benefit of Notification No. 40/78-Cus., dated 1st March, 78. We confirm the findings of the lower authorities. The appeal is dismissed.