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3. We have heard Shri P.K. Dutta, ld. adv. Along with Shri Biswajit Mukherjee, Id. adv. appearing for M/s. Tanya. The other appellants have been represented by different advs. as indicated in the preamble of this order. Shri V.K. Chaturvedi, Id. SDK represented the Revenue.

4. It is the contention of Shri P.K. Dutta, Id. adv. appearing for M/s. Tanya that there was no misdeclaration on the part of the importer. The machine was described in the bill of entry as follows :-

Medical Equipments (Head Scanner Philips Tomoscan with Accessories) -Philips Tomoscan Head Scanner High Power X-ray (Year of Manufacture -1987) Used Medical X-ray Apparatus of Power more than 50 KW.

He submits that the description given by them in their bill of entry fully tallied with the description in the commercial invoice. A certificate was also produced from the chartered engineer issued by American Health Care Technologies, Inc. dt. 7-9-98 and the description of the impugned machine agreed with the description of the machine given in the aforesaid certificate. He submits that they had classified the machine under Heading 9022.14 and paid the duty accordingly. The notice issued to them called upon them to show cause against the differential duty by classifying the goods under Heading 9022.12 instead of 9022.14, without disclosing any reasons as to how the classification has been changed by the customs unilaterally. Though he agrees that the said point was taken before the adjudicating authority, who agreed that the show cause notice merely states that the machine would be classifiable under Heading 9022.12, without giving the notice a reasonable opportunity for explaining as to why the said classification should not be adopted and the Commissioner had also given them an opportunity of show cause notice against the proposed classification, but that does not cure the inherent defect in the show cause notice. Elaborating on his arguments Shri Dutta submits that they had classified the goods under Heading 9022.14 and in view of the list 14 SI. No. 1 of General Exemption No. 121 as appearing in Notfh. No. 23/93-Cus., dt. 2-6-98, duty was paid by them at the rate of 10% basic + 5% special + CV Nil + 4% SED. He submits that after they had filed bill of entry, there was detailed discussions with the concerned Asstt. Commissioner of the group, who wrote a detailed note to determine the category of the machine as to whether the same is high powered X-ray machine as stated in American chartered engineer's certificate and invoice or not. The attention of Deputy Commissioner was also drawn to the matter. The machine was re-checked taking into consideration the available documents and then the goods were assessed to duty after accepting the classification, but enhancing the value from US Dollars 20,400 to US Dollars 31,500. If the Revenue intended to change the classification, they should have done it at the relevant time and assessed the machine under sub-heading 9022.12 instead of sub-heading 9022.14. It is the contention of the Id. adv. that assessment once finalised, should not be re-opened, especially when there is no misdeclaration on behalf of the importer and no appeal having been filed by the Revenue against such assessment.

13. As regards the mis-description about the number of machines the appellants' contention is that the second machine installed in the premises by M/s. Manisha Imaging was not a complete machine inasmuch as one ADC card was missing and one ADC card was not functioning. We do not agree with the above submissions of the appellant. The Commissioner by referring to the rules of interpretation has concluded that the appellants have imported two machines by misdeclaring the same as one number high power X-ray machine. Rule 2A of General Rules for the interpretation of the Schedule of the Customs Tariff Act, 1975 is to the effect that any reference in a Heading to an article shall be taken to include a reference to that article incomplete or un-finished, provided that as presented, the incomplete or unfinished article has the essential character of the complete and finished article. The appellants have not disputed that the machine in question was having more than 90% of its essential parts. Missing of one ADC card would not make the machine as incomplete. There is also no denial by the appellant that the said machine was not imported by them. As such we uphold the findings of the adjudicating authority that M/s. Tanya had imported two machines, but sought clearance by misdeclaring the same as one machine. As such the appellants are liable to pay duty on the second machine, which would be quantified by the adjudicating authority after deciding the correct classification of the same. We make it clear here that our observations as regards the classification of the machine duly declared by the appellant will not come as an obstacle in deciding the classification of the second machine inasmuch as the second machine was never declared by the appellant and as such the Revenue can classify the same in accordance with law and demand duty on the same.