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Judgment
On 28th October, 1999 learned Counsel for the Appellant had stated that the Appellants were willing to abide by the decision of any technical person who might be nominated by the Respondents to determine whether or not the machine in question fell within the description of Item No. 2 of the Table to Notification No. 40/78 dated 1st March, 1978. Learned Counsel for the Respondents then sought time to take instructions. On 30th November, 1999 this Court recorded that it was agreed between the parties that an expert should examine the machine in question, provided he was satisfied that it was in the form in which it was imported and with the same features, subject to ordinary wear and tear over the last six years, and that if he was then of the opinion that the machine was a jig boring machine, that would be acceptable to the Respondents and that if he was of the opinion that it was not, that would be acceptable to the Appellant. The matter was then adjourned to enable the parties to agree upon the name of such expert. This was ultimately done and recorded on 10th February, 2000, namely, that the examination should be carried out by an expert to be nominated by the Central Machine Tool Institute, Bangalore. The nomination having been made, the expert has now examined the machine and come to a conclusion that it is a jig boring machine. This conclusion is acceptable, in the circumstances, to the Respondents.
In the circumstances of the case, therefore, the appeal must be allowed and the order under challenge set aside. The Appellant will be entitled to consequential relief.
The Appellant states that the cost and charges incurred in regard to the expert assessment of the machine shall be paid by the Appellant.
Order on the appeal accordingly. No order as to costs.