1. The Revision Application dated 8th July, 1982 filed against Order No. S/49-1070/79R dated 7-4-80 has been transferred to the Tribunal by the Govt. of India for disposal in terms of Section 131(B)(2) of the Customs Act, 1962.
2. A Goulder Mikron Make 2A Rolling Gear Tester was imported and assessed to duty under Heading 90.16(2) under B/E 1971/648 dated 23-1-1979. Thereafter, it was claimed that the goods should be reassessed in terms of Notification No. 49, dated 1-3-78 at a lower rate of duty. The Asstt. Collector held that the gear testers mentioned in the notification are Hypoid Gear Tester, Gear Profile and Helix Tester, Bevel Gear, Blank Checker, Gear Eccentricity Tester and Hypoid Gear, Tooth Specific Tester. Since the Gear Eccentricity Tester is described separately from the Rolling Gear Tester in the book of Engg.
Metrology by Shri R.K. Jain, they are not the same. Hence, Rolling Gear Tester which is not specified in the notification, is not eligible to the concessional rate of duty and the assessment under Heading 90.16(12) was confirmed. The Appellate Collector held that the function of a Gear Eccentricity Test is to determine an individual error, whereas the machine imported determines composite errors i.e., eccentricity, profile and tooth spacing, all three taken together and not individually. Since the appellants could not furnish any additional information to throw light on Rolling Gear Tester or Gear Eccentricity Tester and explain how the machine could determine individual errors or show that the machine is basically a gear eccentricity tester in addition determines other errors, rejected the appeal.
3. The appellants now contend that the Rolling Tester is capable of determining individual error of eccentricity, profile and tooth spacing as all three errors have distinct characteristics on the graph as shown in the Goulder Mikron Roller Tester Catalogue. They claim that in an eccentricity tester, the error determined is not the error of eccentricity alone but it is affected by the errors of profile and tooth spacing. The Import Policy for 1980-81, Appendix 2, shows "Gear Eccentricity/Rolling Tester" as against "Gear Eccentricity Tester" to clarify the position. The DGTD had also on 9-11-1979, confirmed that gear roller tester would attract 25% import duty only. In a further communication, the appellants furnished a certificate by the manufacturer that the machine is a gear eccentricity tester. They cite Engg. Metrology which indicates maximum composite error as eccentricity and that the gear eccentricity tester measures this and not the individual error. An extract of DIN 3960 item 4.18, to indicate that run out vis nothing but a composite error (eccentricity) as well as relevant extracts of IS 7504-1974 to substantiate their arguments.
4. Shri Dhadhal reiterated these contentions. He referred to the graph in the catalogue which shows the three errors determined by the machine of which Runout is one. Eccentricity being half the radial runout, the machine is a gear eccentricity tester capable of carrying out the tests described by ISI in Methods of Inspection of Spur and Helical Gears.
Even the DGTD had confirmed this.
5. For the Department, Shri Ajwani, stated that the machine is not one of those specified in the exemption notification and even the literature shows that it peforms functions of more than one of them.
He, therefore, wanted the appellate order to be upheld.6. The Tribunal observes that the appellants have adduced enough technical evidence to show that the essential function of the Rolling Gear Tester is that of an eccentricity tester. Due regard has also to be given to the DGTD clarification and the manufacturers' certificate, specially since the department has not refuted the contentions by reference to any authorities or documents. In the result, we allow the appeal and set aside the impugned order.