Per Shri V.P. Gulati :

The issue in the appeal relates to availability of OGL for importation of incircuit testing machine, which is claimed to be a complete machine and also benefit of notification 104/90 for assessment purposes.

2. The Ld. Lower authority in the impugned order has held that the equipment in question is not complete stand alone machine since the machine by itself cannot perform the test as claimed but has to be linked with a computer to get the results.

3. The Ld. advocate for the appellants has pleaded that with the advancement of technology the suppliers have come out with an advance use for, of the testing machine and the output is obtained through a computer. He has pleaded so far as the machine is concerned, the same is for incircuit testing and just because it functions and gives the result through the computer would not make it any the less a testing machine.

4. The Ld. JDR for the department has pleaded that while the machine has been described as incircuit testing machine, same cannot be considered as a stand alone machine for the purpose of benefit of importation under OGL and benefit of notification No. 104/90. He has pleaded that the benefit is available only in respect of such of those machines which as they are imported could be used for the purpose of incircuit testing. He, referred us to the catalogue to say that the input and output are through a computer. He has pleaded unless it could be shown that the computer had also been imported alongwith the machine, the benefit could not be allowed. He also referred us to the opinion of Bharat Electronics wherein they have stated that for the reason, as pleaded by them, the benefit of notification in question would not be allowable.

5. The Ld. advocate referred us to the catalogue and has pleaded that the catalogue clearly shows multi-function software-driven electronic test systems are designed for efficient diagnosis of all the above PCB problems while being extremely cost-effective.

6. He has pleaded that this would clearly show that the equipment has to be used with a software and the same is for testing purpose.

7. He has pleaded that in a number of decision under which it has been held that because of technical advancement resulting in flexibility of the use of the machine that should not come in the way of grant of the benefit which is otherwise available to the machines for licencing purposes or benefit of the notification.

8. We have considered the pleas made by both the sides. We observe that a reading of the catalogue shows that the appellants' equipment is for PCB incircuit testing and is to function with the help of the software. The machine, as it is, is designed for the specified testing purposes which are covered by the OGL and the description in the notification in question at Sl.No. 24. We observe that with the advancement of technology and with the developments in the field of automation, there are number of machines which are functional alongwith the computers. Just because a machine functions alongwith computer it does not detract from its functional capability for it to be considered as machine designed for a particular purpose. The machine, it is seen, has been invoiced as incircuit testing machine. The Hon'ble Supreme Court in the case of CC & Central Excise Vs. Lekhraj Jessumal & Sons reported in 1996 (13) RLT 300 (S.C.) = 1996 (82) ELT 16 has in this context held in paras 3 & 4 as under :-

3. The High Court in the impugned order noted that the stand of the Customs authorities was that the words "switches, miniaturised" as component parts of hearing aids should be understood to mean only those types of switches which were generally used in the manufacture of hearing aids at the time of publication of the Import Policy for the relevant year, namely 1977, and that these words could not be said to include any other type of switch even if such other type of switch could be used in the manufacture of hearing aids. The Division Bench o