Judgment:
1. In all these appeals, Revenue is the appellants. As the issue is common in all the three appeals, hence they are taken up together for disposal as per law.
2. M/s. Precision Tools & Components : In this case the importer had furnished provisional Duty Bond under Section 18 of the Customs Act, 1962, as the goods were provisionally assessed under benefit of Sr. No.2 of Customs Notification No. 40/78. They prayed for final assessment under Sr. No. 2 of Customs Notification in respect of imported goods which has been described in the Bill of Entry as "Tool Room Precision Coordinate Jig Boring Machine Type-WKV 100 Table Size 1000 X 1600". In the invoice it has been described as "Precision Jig-boring machine on the basis of the machine model 24K400F4 complete with various items as described in the invoice". The Sr. No. 2 of the Customs Notification No. 40/78 reads as : "Tool Room Precision Coordinate Jig Boring Machine with or without C.N.C." The importer relied on DGTD letter No. DT-l/10(1)/88/468, dated 30th October, 1991 and claimed for the benefit of the said Notification on the ground that the ITC licence is through Project & Equipment Corporation, who have accepted that the impugned Boring Machine have functions of face milling, end milling and drilling also. The Learned Assistant Collector has not accepted the importer's plea and has held that the importer has not given sufficient technical evidence to establish that the imported machine cannot perform heavy functions. He has also held that the item in question is not covered by Sr. No. 2 of the said Notification. He has also noted the admission of the importer that the imported machine are not only Precision Room Jig Boring Machine but are capable of performing drilling and milling functions also in addition to boring.
3. The Learned Collector, however, disagreed with the Collector (Appeals)'s findings and has held that the opinion given by DGTD is required to be accepted. He has also held that the order of the lower authority reflects total non-application of mind. However, instead of remanding the matter, the Collector (Appeals) has held that the item is covered under the said Sr. No. of the said Notification in terms of the opinion of the DGTD and hence, allowed the importer's claim. Hence, the Revenue is aggrieved with the order. In this appeal, the Revenue has stated that the reference to DGTD, New Delhi was made in a different context as to whether the machine is having precision of tool room machine whereas the issue is whether the item has other functions of milling and drilling etc. which has not been discussed either in the DGTD opinion or by the Collector (Appeals) in his order. It has been stated that the reference was made to DGTD only for a limited purpose to know as to whether the machine is a tool room type or not in view of the limited knowledge being available with the Assistant Collector.
Therefore, the DGTD was requested to inspect/test machine physically at the importer's premises, to confirm the accuracies, to decide if it was a tool room precision machine and not to decide whether it was a Jig Boring only or Jig Boring milling and drilling machine. It has also been stated that the decision cited by the Collector in the case of Blue Star Ltd. do not apply to the facts of the present case as the items and their description in the invoice are different. It has been stated that the Assistant Collector had rightly followed the ratio of the judgment rendered in the case of Batliboi & Co. Ltd. v. Collector of Customs 4. M/s. XLO Machine Tools Ltd. : In this case the description of the machine in the Bill of Entry is "Horizontal and Manual Precision Jig Boring Machine with Accessories". The invoice gives the model DIXI F 310 Sr. No. 1465". The Assistant Collector has held that the imported machine is not merely a Jig Boring Machine but is also capable to perform the functions of boring and milling. He has held that the ratio of the Tribunal's judgment rendered in the case of Batliboi & Co. is totally applicable to the facts of the present case and hence rejected the claim. The Collector (Appeals) in the impugned order has held that the lower authority had not stated what is the basic function of the machine. In terms of the Rules of Interpretation of the tariff, it is the essential character that matters for the purpose of classification and therefore, has held that the lower authority should have found the primary basic function of the machine, for the purpose of determining the classification under the CTA. He has also held that if the basic function of the machine is boring and it is capable of performing a subsidiary function of milling, then it will qualify to be a boring machine only. In engineering parlance it is understood that Boring machine also perform the function of milling with certain adaptations.
Even the Explanatory notes speak about Boring machine, performing the subsidiary function of milling. Therefore, the Learned Collector held that it remains a Boring machine only and is classifiable as such. The Learned Collector has referred to the catalogue and has noted the following points therefrom : If components are to have bores and faces where very high demands are made on dimensional accuracy, surface quality and percies positioning then it is imperative to acquire a precision machine.
Especially as far as box shapped components are concerned, which have to be machined from different sides and where opposing in-line bores have to be machined separately, using the (cable reversing method), there is no doubt at all that a machine of high precision, i.e. a horizontal jig boring machine, with built-in rotary table is best suited. The precision machine can offer great advantages in many different areas, e.g. for machining accurate cylindrical bores, bores or faces to be parallel or at right angles, in line bores using a table reversing operation, fine milling of guideways or other faces which otherwise would have to be ground for example, or independent machining of sections which formerly had to be bolted together. In many cases, assembly will benefit greatly by the interchan-geability of parts produced on a DIXI machine, plus the consistant quality of spares is assured. The extraordinary versatility of the DIXI machine is remarkable as they are also suitable for machining flat components with parallel bores vertical to the base. The somewhat complicated process of clamping against an angular plate is fully offset by earlier chip removal and improved inspection facilities. However, if medium or large sized box shaped parts are to be machined from different sides, then a horizontal machine is absolutely essential large, bulky components can be machined as economically as very small parts when using an additional rotary table." 5. The Learned Collector has differed from the ruling of M/s. Batliboi & Co. cited by the Assistant Collector and has relied on the ruling of the Tribunal rendered in the case of Shri S.K. Choudury In Re : A.Tharmar as reported in 1992 (57) E.L.T. 360.
6. The Revenue is aggrieved with this finding and have stated in their appeal that the Collector (Appeals) has misled himself on relying on the catalogue and the imported machine, and that he has not taken cognisance of the fact that nowhere in the catalogue is mentioned milling is subsidiary to boring. It is stated that the machine is capable of performing milling in addition to boring. It is stated that the ratio of the Tribunal's ruling rendered in the case of Batliboi & Co. is fully applicable to the facts of the present case. It is also stated that the.Collector (Appeals) has not taken cognisance of the facts that the Notification in question is not with respect to the accuracy of performing one function. The imported machine is capable of performing both boring and milling which are not necessarily subsidiary or ancillary to each other which make the machine ineligible for Notification benefit.
7. M/s. D.C.L. Finance Ltd.: The description of the machine in the Bill of Entry is "STANKO Import (Russia) Model 2431 CF 10 (MCK3M) High Precision Tool Room Coordinate Jig Boring Machine". The Assistant Collector in the impugned order-in-original held that the admitted fact is that the imported machine basically performs precision boring and also performs milling and drilling function and therefore, imported machine cannot be called a boring machine.
8. The Collector (Appeals) in the impugned order has held that the machine is basically and predominantly a High Precision Tool Room Jig Boring Machine. If it performs other functions those functions are only ancillary, complimentary or incidental to the main function, that is boring. He has held that for example, if the object requiring boring may sometimes require milling operations, that is why instead of taking the product to other machine to another tool room these ancillary to the" main purpose are performed on the machine itself. Similarly, tool may have measuring equipment to achieve high standard, in the boring operation. The milling machine is available in l/4th of the price of the instant machine. If the machine is used for milling operation the cost can be much more and therefore, not economically and commercially viable. This machine is capable of performing highly special function or specialised function may have incidental/complimentary machine function but the machine is for the main function only. He has held that Horizontal boring and milling machine and jig boring machine are different. Technical literature suggests that jig boring work is done by different operations such as drilling, boring, end facing or and face milling. Because of these operations, the machine does not cease to be jig boring machine. He has relied on the judgment as reported in 1990 (50) E.L.T. 186.
9. The Revenue in this appeal have contended that the ratio of the judgment rendered in the case of Batliboi & Co. squarely applies to the facts of the present case and that the Tribunal had observed that the Notification should be strictly construed, and that the meaning of the words used in the Notification cannot be stretched to cover machine which are not boring machine. It is stated that on the same analogy the special machine which is able to milling and drilling as well as boring is not entitled to the benefit of the Notification which is applicable to Jig boring machine. It is stated that the Collector has overlooked the fact that various accuracy parameters and details of jig boring machine as stated in the write up produced by the importers were not supported by a well known technical literature/standards/jig boring machines of the universal acceptance so as to accept the write up on face value. It is also stated that the Collector (Appeals) has overlooked the fact that the importer had not produced any test certificate from the manufacturers or a technical authority, catalogue or literature of the imported machines before coming to the conclusion that the subject machines confirms to various accuracy parameters and details as laid down thereunder. Therefore, the conclusions are hasty and not based on any evidence on record. It is further stated that the Collector (Appeals) has based his arguments on mere presumptions that milling and drilling functions are only ancillary or complimentary to the main function that is boring or milling machines are much cheaper than the subject machine performing specialised function. It is also stated that the Collector has not offered any concrete evidence in suppport of his presumptions. It is also stated that the ratio of the judgments relied by the Collector i.e. Blue Star Ltd. does not apply to the facts of the case as the machine therein was capable of performing function of "Brinell-cam-Vickers Hardness Testing Machine" and the Notification entry read "Vickers Hardness Tester". It has been held that since the machine was capable of carrying out only a small range of Brinell Test and therefore, was primarily for Vickers Testing. On the other hand, the subject machine is versatile enough to carry out multiple functions of drilling, Boring and milling. Thus the case cited by the Collector is clearly distinguishable.
10. We have heard the Learned SDR, Shri K.K. Jha for the Revenue and the Learned Advocates, Shri Harbans Singh, Shri P.A.S. Rao and the Learned Consultant, Shri A.S. Sunder Rajan for the respondents.
11. Arguing in the case of Precision Tools and Components, the Ld. SDR submitted that reference to the DGTD was only for getting opinion on technical aspect of the machine. However, DGTD had gone beyond the scope of reference and had given an opinion on the applicability of the Notification. Such opinions are not binding on the adjudicating authorities. In this regard, the Learned DR relied on the ratio of the judgments rendered in the case of Guest Keen Williams Ltd. v. Collector of Customs, as reported in 1987 (29) E.L.T. 68. It has been held in para 18 of the judgment which is reproduced below : "18. The question before us is whether the imported goods are entitled to the exemption of the Notification in view of these facts. We have considered the argument of the learned Counsel for the appellants that the Customs have considered the imported goods as 'automatic multistation bolt or nut making machine' for purposes of granting it OGL. His argument was that having accepted the imported goods as such a machine for purposes of licensing, it is neither correct not logical to hold otherwise for the purposes of classification under Customs Tariff and for the interpretation of the notification in question. On a careful consideration, we do not agree with this argument. Whatever may be the similarity in the wording in the Licensing Policy and in the Notification, the interpretation placed in connection with the licensing cannot be automatically applied for the purpose of interpreting the Notification. Besides, we note that the DGTD gave certain opinion in this regard. We do not agree with the arguments of the learned Counsel that the DGTD's opinion should also have persuaded the Customs authorities while they were interpreting the notification as the letter itself shows the advice of the DGTD related only to the licensing aspect. 'Licensing' and 'exemption from Customs duty' are entirely different, and the advice given in connection with one cannot be sought to be automatically extended to another. Thus, while agreeing to the similarity in the description given in the Licensing Policy and in the Notification, we do not agree with the submissions of the learned Counsel in this regard." 12. The Learned DR referred to the details of the machine and submitted that it is a versatile machine and highly sophisticated machine as per the catalogue itself. The Notification extended only to "Tool Room Precision Co-ordinate Jig Boring Machine" and not to heavy drilling as well as milling machine which are independent machine with different functions. The Notification is required to be strictly construed and it cannot be extended to a versatile highly computerised machine. He submitted that the Tribunalhas gone in great detail in respect of the said machine as in the case of Sukeshan Equipments Pvt. Ltd. v.Collector of Customs, as reported in 1995 (77) E.L.T. 621 and after a very detailed examination of the technical aspect including literature, extracts of various technical books etc. has come to the conclusion that the machine in question does not fit with the description in Sr.
No. 2 of the Table to the Notification in question. It is his submission that in the said reported case the details of the machine has also been discussed and after a very detailed examination, the Tribunal has to a majority order held that the benefit cannot be extended to machine in question. He submitted that the imports in the present case are also from the same supplier and manufacturer and therefore, the ratio of Sukeshan Equipments Pvt. Ltd. case is required to be applied and the appeals of the Revenue are required to be allowed.
13. Arguing in M/s. DCL finance Ltd.'s case the Learned DR submitted that the Collector had not even looked into the various technical aspects of the case. He submitted that the importer had filed affidavit of expert by a miscellaneous application at this stage and the said miscellaneous application cannot be entertained as it is an additional evidence. In this regard the Learned DR relied on the ratio of the judgment rendered in the case of Bakelite Hylam Limited, Hyderabad and Ors. v. Collector of Central Excise, Hyderabad and Ors. as reported in 1986 (24) E.L.T. 643 wherein affidavit of an expert produced at the appellate stage was not allowed to be produced as an additional evidence. The Learned DR also referred to the judgment of the Hon'ble Supreme Court rendered in the case of Mineral and Metal Trading Corporation v. R.C. Mishra as reported in 1993 (65) E.L.T. 474 wherein it has been held that the evidence specially procured by party to buttress its case is not worthy of credence and should not be allowed.
14. Arguing in the case of XLO Machine Tools Ltd. case the Learned DR submitted that the Collector had followed the ratio of Blue Star's case and had granted the benefit, on the reasoning that the benefit cannot be denied merely because the machine is capable of performing additional function. The Learned DR pointed out that in the present case imported machine is different, as complex independent function of a different machine had been incorporated in a highly versatile machine weighing very heavily and they were very huge machines occupying very great length and space. Therefore, the field of applicability itself being different, the benefit cannot be granted on the basis the ratio of the Blue Star's case. The Learned DR submitted that the scope of the Notification cannot be extended to enlarge and bring within its ambit different type of machine which perform on a different level and scope and which has not been incorporated with its functions in the Notification. In this context, the Learned DR relied on the ratio of the Hon'ble Supreme Court in the case of Rajasthan Spg. and Wvg. Mills Ltd. v. Collector of Central Excise, "16. Lastly, it is for the assessee to establish that the goods manufactured by him come within the ambit of the exemption notification. Since it is a case of exemption from duty, there is no question of any liberal construction to extend the term and scope of the exemption notification. Such exemption notification must be strictly construed and the assessee should bring himself squarely within the ambit of the notification. No extended meaning can be given to the exempted item to enlarge the scope of exemption granted by the notification." 15. The Learned Advocate, Shri Harbans Singh arguing in the case of Precision Tools & Components submitted that milling and drilling Functions are ancillary and complementary for jig boring. Drilling being a principal function, it satisfies the description of the Sr. No.2 of the Notification, hence, the benefit has been rightly granted by the Collector (Appeals). He submitted that in the Sukeshan Equipments Pvt. Ltd.'s case, the Tribunal had not examined this aspect of the matter and therefore, the ratio of Sukeshan Equipments Pvt. Ltd. order cannot be applied to the facts of the present case. He submitted that the Assistant Collector had referred the matter to DGTD and therefore, the opinion of DGTD is required to be applied and cannot be ignored.
The opinion had been very clear that the machine has to be considered as Precision Tool Room Jig Boring Machine and was eligible for the benefit of the Notification. He submitted that even if the second portion of the opinion is ignored even then the opinion that the machine being a Precision Tool Room Jig Boring Machine, cannot be ignored. He also submitted that the Tribunal in the case of Sukeshan Equipments Pvt. Ltd. had not referred to the judgment in a similar case on a similar import wherein the benefit had been granted as in the case of HMT Ltd. v. Collector of Central Excise in Order No. 439/88-B2, dated 12th Oct., 1988. He submitted that as there are two conflicting judgments in the case of HMT Ltd. and Sukeshan Equipments Pvt. Ltd., the matter is required to be referred to a Larger Bench.
16. Shri A.S. Sunder Rajan, the Learned Consultant arguing in the case of XLO Machine Tools Ltd. adopted the arguments of Shri Harbans Singh and that of Shri P. A.S. Rao. He submitted that DIXIT 300 imported by the party in his case is a Jig Borer and it has no reference to milling. The milling function is only a incidental process. The import is not from Russia but it is from Switzerland. Therefore, the machine cannot be compared to the machine imported in Sukeshan Equipments Pvt.
Ltd.'s case. It is his submission that Sukeshan Equipments cannot be applied to the facts of this case. He admitted that the machine is a computerised and highly sophisticated machinery weighting 14.7 tonnes but his argument is that this factor by itself is not enough to reject the benefit. He also supported the plea of Shri Harbans Singh for reference of the case to the Larger Bench. He submitted that the Assistant Collector has not dealt with the technical aspect of the machine.
17. The Learned Advocate Shri P.A.S. Rao appearing for M/s. DCL Finance Ltd. pressed for allowing the miscellaneous application wherein additional evidence in the form of an affidavit of one Dr. Sushil Kumar Basu has been produced. The Learned Advocate admitted that the imported machine is from Russia but it is his contention that the machinery is distinct from the one involved in Sukeshan Equipments Pvt. Ltd.'s case.
However, he admitted that drilling, boring, milling, counter boring, counter sinking, facing, reaming, marking or making precision patterns are all parts and parcels of a boring, process except that they are various specialised aspects of boring operation or process. It is his contention that the machine is a simple, manually operated and not a sophisticated and computerised numerically controlled machine. It is his contention that drilling is the process of originating a hole. A drilled hole will not be accurate enough as regard its size or geometrical shape and also its positional accuracy. Boring is a process by which an already existing hole can be enlarged and finished; in all parameters-size, shape and position. While a drill may originate a hole, a boring machine generates a hold. Milling is a process to machine flat surface using rotating multi-tool cutters. He submits that a JIG is a device to maintain mechanically correct positional relationship of a workpiece as in a fixture and it also provides correct locational guidance for the tools used in the machining process. He submits that a fixture is a device used to maintain mechanically correct positional relationship of the work-piece, while machining, but it does not guide the tool. JIGs and Fixtures are used to economically achieve with ease, guaranteed accuracy levels in mass produced components to ensure trouble free assembly and interchageability using simple machines and processes. A jig or fixture is required to be manufactured with highest possible precision in making jigs and fixtures and has to be known as Jig Boring Machine, also known as Jig Borer. A Jig Boring Machine can be used for various operations like drilling, milling, counter boring, counter sinking, facing, reaming or making precision patterns. It is his submission that the machinery in Sukeshan's case is 14 times bigger than their machinery. It is his submission that provided as a standard accessory weight of the machinery is 250 Kgs. while that of Sukeshan Equipments' case is 35,500 Kgs. He submits that there is a distinction between boring and drilling. Drilling process does not originate a hole. It is his submission that drilling is an integral part of boring activity and unless a hole is drilled, boring activity cannot be done. It is his contention that the machine is a boring machine but it has to have necessarily drilling tools, so that it originates a hole and it has an ancillary has milling apparatus/equipment. Drilling, boring and milling are integral process. These three processes cannot be distinguished and looked into differently. The Learned Advocate also relied on the ruling rendered in the case of HMT Ltd.'s case and submitted that there is a conflict of opinion and therefore, the matter is required to be referred to a Larger Bench. He submitted that the processing machine is required to be classified on the basis of function. In this regard, he relied on the judgment rendered in the case of Food Specialities Limited v. Collector of Customs as reported in 1988 (37) E.L.T. 415 (Tri.), Kinetic Engineering Ltd. v. Collector of Customs as reported in 1988 (37) E.L.T. 61 (Tri.) and K. Mohan & Co. v. Collector of Customs as reported in 1984 (15) E.L.T. 430. He also submitted that the Tribunal has sufficient powers to admit additional evidence at appellate stage and in this regard relied on the judgment rendered in the case of Collector of Central Excise v. Subros Ltd. as reported in 1989 (43) E.L.T. 543 and that of Autoalarm Industries v. Collector of Customs as reported in 1994 (73) E.L.T. 204.
18. The Learned DR countering the arguments submitted that in Sukeshan Equipments' case, the Learned DR had differentiated the case with that of HMT's case. He submitted that in HMT's case, Tribunal had gone into all the technical aspects of the matter and had accepted oral statement made by one Shri Prasad appearing for HMT who had stated to a query as to whether there are any jig boring machines which are capable of jig boring only and nothing else. He had replied that there is no such machines in the world. Therefore, the judgment rendered in HMT's case applies only to facts of that case and it is not based on any technical literature, while detailed literature has been examined in Sukeshan Equipments Pvt. Ltd.'s case. In the Sukeshan Equipments' case even opinion of experts had been referred to therefore, Tribunal after examining HMT's case had not followed that ratio and had opined that the machinery imported could not satisfy the terms of the Notification in view of enormous technical evidence produced before them. The Learned DR also relied on the judgment rendered in the case of Bakelite Hylam Limited v. Collector of Central Excise, as reported in 1986 (24) E.L.T. 643.
19. We have carefully considered the submissions made by both the sides and have perused all the three files. The first aspect that is required to be considered is as to whether there is any contradiction in the judgment of Sukeshan Equipments Pvt. Ltd. and that of HMT Ltd. case. In the HMT Ltd. case the Tribunal has held in para 6 as follows :- "6. We have considered the arguments. The application of chapter note for the interpretation of the notification as proposed by the learned Representative of the appellant, is not correct. However, at the time of hearing we asked Shri Prasad, who is a B.E., & M. Tech.
and a Sr. Officer of M/s. H.M.T., whether there are any Jig Boring Machine which are capable of Jig Boring only and nothing else. He replied that there is no such machine in the world. Later on further questioning it came out that a Jig Boring Machine has a very high precision and that a Boring Machine is different from this machine.
There can be exclusive Boring Machines but not exclusive Jig Boring Machine. We further notice that the invoice described the goods as coordinate Jig Boring and Milling Machine" and the literature shows that it is described as "tool room precision coordinate Jig boring machine". The learned representative of the appellants emphasised that the imported machine is not a production machine at all, its high precision making it necessary only for the tool room. We have also seen the certificate given by the Central Machine Tool Institute, Bangalore wherein they recorded that "we are convinced that the machine under reference is a special 'tool room coordinate jig boring machine'.
20. As can be seen from the above order the Tribunal proceeded only on the basis of oral statement of one Shri Prasad. The Tribunal did not have technical literature or enormous opinions as has been examined in great detail in Sukeshan Equipments Pvt. Ltd.'s case. Therefore, the judgment of HMT Ltd. is applicable only for that case. The machine imported therein was "SIP-600 coordinate Jig Boring Machine for use in the tool room" In the present case the machines are different and they have been imported from Russia and Switzerland. The Russian supplier is common to all the importers case in that of Sukeshan Equipments Pvt.
Ltd.'s case. Import in the case of precision tools and that of DCL Finance Ltd. are the same Russian supplier. As can be seen from the catalogue as well as description of the machinery in the case of Precision Tools, the machine is not an ordinary Jig Boring Machine. The DGTD has also not given any opinion about the machine being computer operated machine. Therefore, the opinion of DGTD cannot be said to be binding on the authorities. In this context the ratio cited by the Learned DR is totally applicable to the facts of the present case. In view of M/s. Precision Tools' case the catalogue indicates that machine is 24K40C4 CNC Single Post Vertical JIG Boring, Drilling and Milling Machine. The application and design features of the machine as per the technical details are given herein below : The machine is designed for machining holes in various pieces with a high accuracy grade of their geometric shape, dimensions and spacing in Cartensian coordinates by boring, reaming, drilling, core-drilling and reaming. It can be used for finish and semi-finish milling of surfaces, facing, laying out of accurate tamplets and checking of distance between centers in finished pieces when employing a universal rotary table, the machine can be used for machining holes spaced given polar coordinates and at any angle to the datum surface. The machine shows a single stationary C-column arrangement with a compound table. The ways are of sliding type (fluorine-based plastics facing on cast iron). Feed drives have ball leadscrews directly coupled with high torque dc. servo motors. This ensures stepless control of the table, the saddle and the spindle head feed rates in a wide range.
Clamping of the moving parts of the machine is effected by the hydraulic drive, while cutting tools are clamped by a set of disk springs.
High rigidity of the machine structure permits its erection it on three supports. This avoids any posibility of distortion caused by foundation deformation which is detrimental to the machine accuracy.
The machine is supplied with CNC, HEIDENHAIN MODEL TNC 151 or any other contemporary model.
The machine conforms to high accuracy standard, VDI/2160-3441 and as such finds wide application in precision tool rooms.Electrical equipment (Set) HoldersBoring cutters tipped with carbide (set) ExtensionsBoring bar with micrometer cutter AdaptersSettingArbor with dial micrometer gauge Bell-type CentresAdjustable pad Sleeves Morse Tapper socket and slot for Knocking out. Drill ChLap WedgesCenter locator with microscope BlockCenter locator with dial indicator Attachment for assemblingMechanical Center-punch module type toolsUniversal tool holder Maintenance tools (set)Arbor for facing milling cutters Service ManualCollect Chucks with a set of collects On special orderSleeves with Morse taper (with screw)Threading chuck Universal indexing rotaryThreading inserts table (250 mm dia)Setting center Coolant SystemHold-downs Grinding headCapacity mmin boring 250Diameter of milling cutter 125employed, mm. (not over)Axil thrust on spindle 4000N (not over)Torque on spindle, 210N-m (not over)Shank taper of tools employed No. 4 MorseDistance from spindle nose end to tableWorking suface, mm 130 to 630Spindle overhang, mm 450Table working surface mm.
400x800Table, travel, mm (not over)longitudial 630Cross 400Number of T-slots 5T-slots spacing 80T-slots width 14Range of spindle rotation 6.3 to 3150frequencies, min-1head feed rates, mm/min 1 to 6000Rapid traverse speed of table 6000and spindle head, mm/minof table, mm -0.005of saddle, mm - 0.005of spindle head, mm - 0.012Positioning accuracy with probabilityof table, mm - 0.003of saddle, mm - 0.003of spindle head, mm - 0.008Positioning accuracy over 300of table, mm - 0.002of saddle, mm -0.002of spindle head, mm - 0.0035Repeatability, mm - 0.0015Spindle run out at nose, mm - 0.0015Main drive motor power, KW - 4.2Machine overall dimensions, mm 2618x2552x3300Mass (without electrical equipment, 1355"NC console, hydraulic plant and 21. As can be seen from the above description of the machine, the machine is not a simple jig borer for which the Notification applies.
The Tribunal has gone in great detail in Sukeshan Equipment's case and has examined the technical literature and various books on the technical aspect of the matter. After a very detailed examination the Tribunal has come to the conclusion that machine is a highly complex sophisticated machinery. It has been held that machine does not perform just light milling as understood, but it is a sophisticated machinery.
After examining the technical aspect, the Tribunal has held that the ratio of Batliboi & Co. is also applicable to the facts of this case.
The third member also after a detailed examination of the technical literature and extracts from various books has clearly seen the difference between the description in the Sr. No. 2 of the Notification which grants exemption to tool room precision coordinate jig boring machine with or without C.N. controls and after examining the machine and also the various technical literature has held that the ambit of the notification cannot be expanded to grant the benefit to a highly complex machinery which is in the nature of an entire plant. The Tribunal has also noted several judgments on this aspect of the matter.
Although specific finding on HMT's case has not been given but the Learned SDR's arguments on HMT's case has been noted with specific reference to the certificate of Central Machine Tool Institute, Bangalore. Therefore, it follows that the Tribunal has taken into consideration the HMT's case, while recording the finding. The import in the HMT's case was of a different machine which satisfies the terms of the notification, while in the present case M/s. Precision Tools and that of M/s. DCL Finance Ltd. they are identical with that of machine in Sukeshan Equipments' case. Therefore, it has to be held that the ratio of Sukeshan Equipments squarely applies to both these cases and that HMT's case is not applicable and is clearly distinguishable. There is no need for reference of these cases to a Larger Bench, as pleaded by the Advocates.
22. The Learned Advocate P.A.S. Rao pleaded for allowing the affidavit of one Dr. Sushil. As has been held by the Hon'ble Supreme Court judgment in MMTC's case cited by the Learned DR belated evidence produced by a party to buttress its case is not worthy of credence, hence this evidence in the form of affidavit cannot be entertained at this late stage, more so over since the appellants are the Revenue and not the importers. It is further to be noted that the affidavit refers to the machinery in Sukeshan Equipment's case. Deponent of the affidavit has only examined the contents of the Sukeshan Equipments' judgment to give his opinion on the machine. Once court has given its judgment it is not for deponent to comment on the findings of the Sukeshan Equipment's case by quoting para 3 of the judgment. Therefore, this additional evidence in the form of affidavit is required to be rejected.
23. The technical detail of the machinery in M/s. DCL Finance Ltd.'s case states that: "the machine is designed for particularly high precision working of a wide range of parts of various configuration weighing upto 250 Kg.
Precise disposition of axes, high quality of surface finish and comentrical accuracies achievable attribute to the wide use of the machine in the tool rooms of various industries." The details of the machinery given above suggests that it performs high accuracy, high efficiency operation and wide production capabilities.
It performs various other works independently. Therefore, it suggests that it is not a machine capable of one function only for which the Notification grants exemption. Therefore, the ratio of the Sukeshan Equipments' case directly applies to the facts of the case. Hence, we have to hold that HMT's case is distinguishable and not applicable to the facts of this case.
24. In the case of XLO Machine Tools Ltd. the machinery has been imported from Switzerland. On a perusal of the literature, it is clear that the machinery is a complex and semi-automatic tool clamping with central screw draw bar, interchangeable spindle adaptor with standard taper. Although, the supplier is different but it is an admitted fact that the machinery is a versatile machine and does not merely performing function of jig boring for which the benefit has been granted. The details of the machinery has already been extracted in the Collector's order which shows that functions are akin to the machine imported in Sukeshan Equipments' case. Therefore, the ratio of Sukeshan Equipment directly applies to the facts of the present case.
25. The Learned Advocate, Shri Rao relied on the judgment in the case of Food Specialities Limited, Kinetic Engineering Ltd. and K. Mohan and Co. All these three cases deals with the classifying the product on the basis of Section note, chapter note and rules of interpretation. In the present cases, the quention of classification is not involved, hence the ratio of these cases is not applicable at all.
26. In that view of the matter, the Revenue succeed in these appeals and all the appeals of the Revenue are allowed by setting aside the impugned order.