1. Question for decision in this appeal originally filed as revision application the Government of India, is appropriate classification of Cloth Drilling Machine and Cloth Cutting Machine.
2. The Appellants through their Customs House Agent M/s. Narayan Singh & Co. by Bill of Entry Cash No. 2020 dated 2-7-1979 ex-s.s. 'Vishva Amitabh' inter alia imported one Cloth Drilling Machine (item 2 of the Bill of Entry) and one Cloth Cutting Machine (item No. 3 of the B/E).
Cloth Drilling Machine was classified under heading 82.05 and Cloth Cutting Machine under heading 84.60 (1) of CTA. It appears that on Cloth Cutting Machine additional duty (countervailing duty) was also realised.
3. The appellants applied for reassessment of Cloth Drilling Machine under heading 84.40(1) and Cloth Cutting Machine without c.v.d. The Asst. Collector of Customs, Bombay by his order despatched on 27-7-1979 rejected the claim. The order was upheld in appeal by Shri M.G. Vaidya, Collector of Customs (Appeal), Bombay by his order dated 24-2-1980.
Hence the present appeal.
4. In the grounds of appeal the appellants have contended that item 2 of Bill of Entry 'Electrical Cloth Drilling Machine driven by 1/10 H.P.Motor, is indespensible machine used in the Garments industry and its classification under heading 82.05/1 of C.T.A. as tools is grossly incorrect. About item No. 3, high speed automatic Cloth Cutting Machine classified under 84.40(1) with countervailing duty under Item 51A of GET, they urge that these goods are covered by exemption notification No. 41 and 46 dated 1-3-1978 under which duty of 25% ad valorem is chargeable. It is further urged that where goods are liable to pay only 25% customs duty no countervailing duty was not chargeable.
5. At the hearing none appeared for the appellants. Shri M. Chatterjee, JDR represented the respondent Collector.
6. It may be stated that earlier hearing of the appeal was fixed for 15-6-1983 when none appeared for the appellants. The appellants had however addressed a communication dated 6-5-1983 to the Tribunal requesting for hearing in Bombay. The hearing then was adjourned to 29-7-1983. The appellants were then informed that as the matter fell under jurisdiction of Special Bench and it is located at Delhi, it would not be possible to fix a hearing in Bombay. The appellants were also informed that if they so desire they might submit their arguments in writing which would be taken into consideration at the time of hearing. No communication was, however, received from the appellants.
7. At the hearing dated 29-7-1983, Shri Chatterjee defended the orders passed by the lower authorities.
8. Heading 82.05 inter alia covers power operated hand tools for drilling. Heading 85.05 which the Asst. Collector found Cloth Drilling Machine to be falling under covers tools for working in hand with self-contained electric motor. The Appellate Collector of Customs held that goods were correctly assessable under this heading but as the duty under heading 82.05(i) and 85.05 were the same, no benefit by way of refund accrued to the appellants. The Appellate Collector also found that the machine was not a fabric cutting machine classifiable under heading 84.40(1). No material has been placed before us to enable us to come to a finding different from that of the Appellate Collector of Customs.
9. As for the appellants' getting benefit of Notification No. 41-Cus., dated 1-3-1978, it is noticed that notification is applicable to automatic machine. The lower authorities have found that the machine in question is basically a tool in hand with self-contained electric motor. There is no material to rebut this finding of the lower authorities. The notification would therefore not be applicable in the appellants' case.
10. As for applicability of Notification No. 46-Cus., dated 1-3-1978 regarding item 3 of B/E Cloth Cutting Machine it might be pointed out that according to invoice it is "consew model 606". In the part catalogue "cutting room equipment" placed by the appellants at this stage only details about model numbers 616, 600, 500, 505, 506, 508, 560 & 580 are given. It does not have the literature on the model No.606 about which we are called upon to decide in the present case. In the absence of the same it is not possible to correlate the machine with this notification. For want of adequate material this claim cannot be upheld.