1997(08)LCX0227

IN THE CEGAT, SOUTH ZONAL BENCH, MADRAS

S/Shri V.P. Gulati, Vice President and T.P. Nambiar, Member (T)

WIPRO INFORMATION TECHNOLOGY LTD.

Versus

COMMR. OF CUS., BANGALORE

Order No. 2433/97, dated 5-8-1997 in Appeal No. C/1633/89-B2

Advocated By : Shri C.R. Sridhar, Advocate, for the Appellant.

Shri S. Arulswamy, JDR, for the Respondent.

[Order per : V.P. Gulati, Vice President]. - The issue in the appeal relates to the classification of the goods which have been described as computer control testing equipment by the appellants. The classification sought by them is under Tariff Heading 90.28 (1) while the learned lower appellate authority has held the goods to be classifiable under 84.51/55 (2). The two Tariff Headings at the relevant time read as under :

90.28

Electrical measuring, checking, analysing or automatically controlling instruments and apparatus :

(1)

Not elsewhere specified.

84.51/55

(2)

Automatic data processing machines and units thereof; magnetic and optical readers, machines for transcribing data on to data media in coded form and machines for processing such data, not elsewhere specified or included, parts and accessories suitable for use solely or principally with the machines falling within this sub-heading.

 2.  The learned Advocate for the appellants has pleaded that even if the equipment is held to be assessable under Tariff Heading 84.51/55 the appellants would be eligible to the benefit of Notification 118/80 dated 19-6-1980. The appellants goods will be covered under Sl. No. 47 in the table to the notification. He has pleaded for the purpose of these proceedings, he is giving up his plea for assessment of the goods under Tariff Heading 90.28 (1) and seeks the benefit of Notification 118/80 as above. He has pleaded the learned lower authority has not addressed himself to the appellants plea for the benefit of this notification and has sought for a remand of the matter for consideration of the issue afresh.

3.  The learned JDR for the department has no objection to this course of action.

4.  We have considered the pleas made by both the sides. We observe that inasmuch as the plea of alternate classification under Tariff Heading 90.28 (1) not pressed, we uphold the order of the learned lower authority. So far as the classification of the goods under 84.51/55 (2), the appellants plea for the benefit of Notification 118/80 has been taken note of by the learned lower authority but no findings as such have been entered in this regard. We also observe that the items covered under the notification being specialised in nature, would also require a technical write-up as also the opinion of an expert to come to a conclusion as to whether the goods in question would be covered by the description of the goods falling under Sl.No. 47 of the table to the notification above. Inasmuch as the learned lower authority has not examined the issue in the above light, we are of the view that the learned lower authority’s order is not proper and we, therefore, set aside the same and remand the matter for de novo consideration and decision in the light of the above and after affording the appellants an opportunity of hearing. The learned lower authority is free to call in any expert and the appellants can also do likewise, in the interest of justice.

5.  The appeal is, therefore, allowed by remand in the above terms.

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Equivalent 1999 (106) ELT 490 (Tribunal)