Civil Appeal No 571 of 1987
From the order dated 5121986 of the Customs Excise and Gold Control Appellate Tribunal New Delhi in Appeal No 42486 B 2
TR Andhyarujina FHJ Talyarkhan Shri Narain RK Krishnamurthi and Sandeep Narain for the Appellants
AK Ganguli P Parmeswaran and Ms Radha Rangaswamy for the Respondents
39 The Judgment of the Court was delivered by A RANGANATH MISRA J
This appeal under section 130 E of the is directed against the decision of the Customs Excise  Gold Control Appellate Tribunal New Delhi by which the Tribunal has reversed the appellate decision of the Collector of Customs Appeals Bombay
The short point involves in this appeal is as to whether the imported special purpose complex machine has to be charged to customs duty under item 89591 as claimed by the Revenue or under 844548 of the tariff schedule as maintained by the appellant
If the appellant s claim is accepted the duty is at the rate of 40 per cent while if the department s stand is maintained it is at the rate of 60 per cent
The Assistant Collector took the view that the imported machine was not manufacturing carburettors and was discharging an individual function of plugging holes in the carburettor body with the help of lead shots
Therefore the appropriate entry was 84591 of the Customs Tariff
The appellant challenged the order of the Assistant Collector by preferring an appeal to the Collector Appeals
He took the view that the imported machine by plugging holes on the carburettor body with the help of lead shots was clearly a machine which was fully conforming to the description of a machine for treating metals inasmuch as it was treating carburettor body and preparing it for being revetted
The plugging on the carburettor body the Collector felt was therefore in the nature of treatment on the metalic body for making it revetable subsequently even otherwise also the machine by plugging holes on the carburettor body was confirming to the description of a machine tool as given under heading 845448 of the Customs Tariff
He therefore accepted the appellant s contention
On further appeal the Tribunal after discussing the stand point of the two sides came to the following conclusion Our considered view is that the function of the machine is to plug the holes of carburettor body
The cutting or trimming operation is incidental to this function as it removes the extruded portion of the lead shots
The function of checking is also a part of the main function of plugging as the object of checking is to ensure that the plugging has been done perfectly to make it air tight
None of these functions can be considered to be treating metal within the meaning of sub heading 2 of Tariff Heading 40 8459
The function of plugging the holes of carburettor body does not amount to working metal
It does not change the shape or form of the metal
The portion of the machine which cuts the extruded portion of lead shot is not a reaming machine working the internal surface of an existing hole to exact dimension within the meaning of Explanatory Note 8445A5 of the CCC N Volume 3 Chapter 8445
The imported machine in question does not fall within the definition of machine tool given in MC
Graw Hill Dictionary of Scientific and Technical Term as cited by the learned SDR Classification of the impugned machine under Tariff Heading 844548 is therefore ruled out
Even by taking all the functions of the machine into consideration the classification for the purpose of customs duty will have to be determined keeping in view Section Note 3 in Section XVI and Chapter Note 5 of Chapter 84 of the First Schedule to the  according to which the principal function will be determining factor
The principal function of this machine is to plug the holes of carburettor body
The machine does not fall under any of the heading of Chapter 84 of the Tariff 8459 of Schedule I provides Machines and mechanical appliances having individual functions not falling within any other heading of this Chapter 1   2   60
 The entry is therefore a residuary one and indisputably if any other entry applies application of entry 8459 is ruled out
The appellant maintains that the appropriate entry to apply to its case is 844548
That provides Machine tools for working metal  40 Machine tool according to Tool Engineers Handbook published by Mc Graw Hills means any machine operating other than by man power which employs a contact tool for working natural or synthetic 41 material
Graw Hill Dictionary of Scientific and Technical Terms A gives the following meaning A stationary power driven machine for the shaping cutting turning boring drilling grinding or polishing of solid parts especially metals Even according to the Department machine tools coming under entry 8445 are machines used for shaping or surface working metal or metal carbides by either i cutting away or otherwise removing metal or metal carbides for example lathes drilling planing slotting milling or grinding machines
ii changing the shape or form of the metal without removing any of it
The note indicates that machine tools in general remain classified under this heading even if specialised for a particular industry
Machine tools include slotting machines drilling and boring machines tapping machines reaming machines and riveting machines
Counsel for the appellant produced before us a carburettor without being treated by the machine and another which has already been treated
He also produced a lead shot as also a nozle and indicated the drilling process which is carried on by the machine on the carburettor
We are of the view that the machine in question is indeed a multy purpose one and keeping its performance in view we are inclined to agree with the submission of the counsel for the appellant that the machine is a machine tool working on metal and should legitimately find its way into entry 844548
Once it is so identified it does not get into the residuary entry
In our view the Collector had reached the correct conclusion
The appeal is allowed
The order of the Tribunal is vacated and that of the Collector is restored
Parties are directed to bear their own costs
NVK Appeal allowed


Summary:
 Rule 5 of the Andhra Pradesh Roads and Buildings Engineering Service Special Rules 1967 lays down that for promotion to the post of Executive Engineer a Graduate Assistant Engineer should be a a full member or approved probationer b a direct recruit should put in six years service as Assistant Engineer and c a promotee Assistant Engineer should put in five years service
There is no provision for giving preference to one category over the other for promotion
Rule 23a of the Andhra Pradesh State and Subordinate Service Rules 1962 empowers the appointing authority to commence the probation of a person appointed to the service with retrospective effect
Rule 33a of these rules mandates the determination of the seniority of a person in a service by the date of first appointment
The appellants were directly recruited as Assistant Engineers in April 1966
Respondents 3 and 4 were temporarily appointed Assistant Engineers by transfer on 14th August 1959 and 19th May 1960 respectively
Their services were regularised with effect from 19th May 1961 by an order dated 3rd May1967 in exercise of the powers under section 23a of the General Rules
The appellants sought promotion to the post of Executive Engineer on the basis that they were senior to the promotee Assistant Engineers respondents
Their case was that the Chief Engineer was hot competent to make the order under s23a of the General Rules
The State Government vide their order dated August 10 1983 decided that the seniority of the direct recruits and promotees has to be determined with reference to their regular appointment of the category of Assistant Engineers and not from the date of confirmation in the said category and declared that the seniority of the appellants was far below the respondents and they would be considered for promotion in their turn alongwith others
25 A writ petition filed by the appellants in the High Court challenging the said order was dismissed by a Single Judge and that dismissal was upheld in appeal
Dismissing the appeal by special leave  HELD The law relating to inter se seniority in a cadre is well settled
If there be a rule indicating the manner in which such seniority has to be fixed that is binding
In the absence of such a rule length of service is the basis for fixing Inter se seniority
In the instant case there is no provision in the Rules under consideration that direct recruits would have preference over promotees for purposes of inter se seniority
In the absence of such a rule the guidelines indicated in the General Rules which provide that seniority shall be determined by the date of first appointment to the service have to be followed
Respondents 3 and 4 have put in longer service than the appellants in the post of Assistant Engineer
Their services had been regularised with effect from May 19 1961 in exercise of the powers under Rule 23a of the General Rules which date is not anterior to their appointment as Assistant Engineer
The regularisation is thus not vitiated on account of arbitrariness
The appellants would therefore rank below respondents 3 and 4 in the cadre and the promotional benefit would be given to them after the claim of the respondents 3 and 4 has been duly considered