P.K. Kapoor, Member (T)

1. This is an appeal arising out of Order passed by the Collector of Customs and Central Excise (Appeals), Madras. Briefly stated, the facts of the case are that the appellants imported Miniature Angle Beam Probes against bill of entry No. AD 1088/26-9-1987. The item was classified under Heading 9806.00 and was assessed to duty on 70% + 40% +15%. The appellants filed a refund claim on the ground that the imported Miniature Angle Beam Probes were assessable at the concessional rate of duty of 45% + 45% in terms of Notification No. 69/87-Cus, dated 1-3-1987 being parts of Ultrasonic Flaw Detectors which did not contain Thermionic Valves or Transistors or similar semi-conductor devices or light emitting diodes or Electronic Micro Circuits. The appellants' claim was rejected by the Assistant Collector on the ground that they had failed to produce the relevant catalogue. The appeal filed against the Order passed by the Assistant Collector was also rejected by Collector (Appeals) on the ground that in the absence of manufacturer's catalogue, it was not possible to verify the nature of the imported goods.

2. On behalf of the Revenue, learned JDR, Shri J.N. Nair stated that the imported Miniature Angle Beam Probe being a part of Ultra Sonic Flaw Detector was classified under Heading 9806.00. The appellants' claim for re-assessment of the imported goods in terms of Notification No. 69/87-Cus., dated 1-3-1987 was rejected since they failed to produce the literature to establish that the Probes in question did not contain any of the electronic components listed against Serial No. (i) of proviso to the said Notification. He referred to the catalogue filed by the appellants alongwith their appeal and contended that it was not possible to infer from it whether the Ultra Sonic Probe in question did not contain any of the electronic components which would disqualify it from the purview of Notification No. 69/87-Cus., dated 1-3-1987. Shri Nair further contended that the burden to establish that the goods were covered by Notification No. 69/87-Cus., dated 1-3-1987 was squarely on the appellants. On the ground that they had failed to discharge the burden, he pleaded that the appeal may be rejected. During the hearing of this case, nobody appeared on behalf of the appellants.

3. The appellants in their letter dated 19-9-1989 requested for a decision on merits. We, therefore, proceed to dispose of the appeal on the basis of the facts on record. We have examined the record of the case. The only question that arises for consideration in this case is whether the imported Miniature Angle Beam Probe was covered by Notification No. 69/87 dated 1-3-1987 (as amended) the relevant extracts from which are reproduced below :-

"In exercise of the powers conferred by Sub-section (1) of Section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it necessary in the public interest so to do, hereby exempts parts, falling under Heading No. 98.06 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), of the goods specified in column (2) of the Table thereto annexed, when imported into India from --

(a) so much of that portion of the duty of customs which is specified in the said First Schedule as is in excess of the amount calculated at the rate of 45 per cent ad valorem; and

(b) from the whole of the additional duty of customs leviable thereon under Section 3 of the said Customs Tariff Act.

4. Ultra Sonic Flaw Detector being an instrument for detection falls under subheading No. 90.31 of the Customs Tariff Act, 1975. Even though the imported Miniature Angle Beam Probes were assessed under the general Heading 98.06, being parts of the Ultra Sonic Flaw Detectors, they could be deemed as falling under Heading 9031.90. Hence, the disputed Miniature Angle Beam Probes could be considered as eligible for the benefit in terms of Notification No. 69/87-Cus., dated 1-3-1987 provided they did not contain