UDGMENT :

Ashok Bhan, J.

Revenue has filed this appeal against the final Order No. 1813/2000-B dated 25.10.2000 in Appeal No. C/164/89-B2 passed by the Customs, Excise and Gold (Control) Appellate Tribunal (for short "the Tribunal") whereby the Tribunal has set aside the order in original as well as the order passed in the appeal and held that the machinery and equipment imported by the assessee-respondent was classifiable under Heading 98.01 of the First Schedule to the Customs Tariff Act, 1975 (for short "the Tariff Act") and granted the benefit of Project Import under the Project Import Regulation to the assessee Facts:

2. Assessee-respondent (for short "the respondent") is engaged in the setting up of industrial unit such as fertiliser plant. M/s. Indian Farmers Fertilisers Cooperative Ltd. entered into a contract with their parent Company M/s. Toyo Engineering Corporation, Japan for designing, engineering, fabricating and commissioning an Ammonia Storage Package Unit and a Co- generation Plant. Their Parent Company in turn entered into an agreement with the respondent to carry out all the works, services, erection and commissioning of the project on turn key basis. The respondent filed an application on 17.03.1986 with the Contract Registration Cell for grant of the benefit under the Project Import Scheme read with Notification No. 72/85-Cus., dated 17.03.1985 in respect of goods sought to be imported. Respondent has imported various special construction equipments, available at their overseas project at Kuwait, and filed eleven Bills of entry in March, 1986 for the clearance of goods, which were cleared on payment of duty under protest.

3. The Assistant Collector, under Adjudication Order No. S/5-Misc. 376/86-CC, dated 18.08.1987, rejected the request of the respondent for registration under the Project Import Regulation on the ground that the imported goods are the property of the respondent and even after execution and completion of the work, these goods would remain the property of the respondent and the ownership of the imported goods would not pass on to the Project Authority. It further held that as the goods could be used for other work elsewhere after the completion of the present project, the imported goods would not qualify for classification under Heading 98.01 of the Tariff Act.

4. Being aggrieved, the respondent filed an appeal before the Appellate Authority which was rejected. It was held that as per Heading 98.01 of the Tariff Act the items of machinery or component parts should go into the initial setting up of the unit and should not merely be used as an aid for the setting up of the unit or its substantial expansion. As the respondent could utilise the machinery elsewhere in the setting up of other plants, the impugned goods could not be classified under Heading 98.01 of the Tariff Act.

5. The respondent being aggrieved filed an appeal before the Tribunal which has been accepted by the impugned order. The Tribunal held that the grounds on which both the lower authorities have denied the facility of project import to the respondent were not sustainable in law. After detailed discussion the Tribunal set aside each of the findings recorded by the appellate authority and held that the respondent would be eligible to the benefit asked for Heading 98.01 of the Tariff Act reads as under:

"98.01 All items of machinery including prime movers, instruments, apparatus and appliances, control gear and transmission equipment, auxiliary equipment (including those required for research and development purposes, testing and quality control), as well as all components (whether finished or not) or raw materials for the manufacture of the aforesaid items and their components, required for the initial setting up of a unit, or the substantial expansion of an existing unit, of a specified."

(1) Industrial plant,

(2) Irrigation project,

(3) Power project,

(4) Mining project,

(5) Project for the exploration for oil or other minerals, and

(6