1998(01)LCX0229

IN THE CEGAT, SOUTH ZONAL BENCH, MADRAS

S/Shri T.P. Nambiar, Member (J) and P.C. Jain, Member (T)

BINANI ZINC LTD.

Versus

COMMISSIONER OF CUSTOMS, COCHIN

Order No. 55/98, dated 12-1-1998 in Appeal No. C/R-229/96

Cases Quoted

Albright, Morarji and Pandit Ltd. v. Collector — 1987(11)LCX0040 Eq 1988 (033) ELT 0488 (Tribunal) — Followed [Para 5]

Collector v. Shriram Vinyl & Chemical Industries — 1988(02)LCX0018 Eq 1989 (043) ELT 0087 (Tribunal) — Followed [Para 5]

Shriram Foods & Fertilizers Ltd. v. Collector — 1994(03)LCX0014 Eq 1994 (071) ELT 1047 (Tribunal) — Followed [Para 5]

Arron Phospho Products Pvt. Ltd. v. Collector — 1995(09)LCX0043 Eq 1996 (086) ELT 0476 (S.C.) — Referred   [Para 7]

Southern Petrochem Industries v. Collector — 1993(03)LCX0072 Eq 1994 (069) ELT 0710 (Tribunal) — Referred  [Para 7]

Advocated By : Shri A.K.J. Nambiar, Advocate, for the Appellant.

Shri R. Victor Thyagaraj, SDR, for the Respondent.

[Order per : P.C.  Jain, Member (T)]. - Briefly stated, the relevant point of the case are as follows.

2. The appellants, herein, imported goods described by them as “spares for zinc metal pump”. The goods were assessed to duty under Tariff sub-heading 6815.10. Later on the appellants herein claimed refund of duty of Rs. 1,42,981/- claiming classification of the goods under Tariff sub-heading 8413.91, as parts of pumps for liquids.

3. The learned Advocate, Shri A.K.J. Nambiar, appearing for the appellants, has submitted that the lower authorities had been wrong in classifying the goods under Chapter 68, inasmuch as the authorities have not appreciated the scope of the said Heading 68.15, under which the sub-heading 6815.10 falls. He points out that the Heading 68.15 speaks of:- “Articles of stone or of other mineral substances, not elsewhere specified or included”.

4. The learned Advocate, therefore, emphasises that this heading and sub-heading, thereunder would cover only articles of non-electrical articles of natural graphite and not of artificial graphite. He submits that the spares in question imported by the appellant are of artificial graphite.

5. On our query, the learned Advocate fairly submits that this plea was not taken by the appellant before the lower authority, inasmuch as they themselves did not understand the scope of Chapter 68, and later on they became aware of this by virtue of various Tribunal decisions as under :

1987(11)LCX0040 Eq 1988 (033) ELT 0488 (Tribunal)

(Albright, Morarji and Pandit Ltd. and Another v. CC, Bombay and Another).

1988(02)LCX0018 Eq 1989 (043) ELT 0087 (Tribunal)

(CC v. Shriram Vinyl & Chemical Industries)

1994(03)LCX0014 Eq 1994 (071) ELT 1047 (Tribunal)

(Shriram Foods & Fertilisers Limited v. CC, Bombay)

6.  In all the above said decisions, the learned Advocate points out that scope of Item 68.15 has been restricted to natural graphite and not to artificial graphite. On a query from the Bench, he, further points out that there is enough material in his hand to substantiate to the lower authorities that the goods are made of artificial graphite. He, therefore, prays for remanding the matter to the original authority to substantiate the aforesaid plea.

7. The learned SDR, Shri Victor Thyagaraj, pointed out that this plea has been taken up for the first time and should not be allowed at this stage, because it involves a finding on fact. He relies on the decision reported in 1995(09)LCX0043 Eq 1996 (086) ELT 0476 (S. C.). He also relies on the Tribunal’s judgment in the case of Southern Petrochem Industries v. CC., Madras reported in 1994 (069) ELT 710. The learned SDR, further, makes a submission that if the contention of the learned Advocate for the appellant is accepted, it will make Chapter Note 1(a) of Chapter 84, redundant, inasmuch as by the said note, goods falling under Chapter 68 are specifically excluded.

8. We have carefully considered the pleas advanced from both the sides. While we agree with the learned SDR and it has also been fairly admitted by the learned Advocate, that this plea has been taken for the first time, we observe that this plea goes to the root of the matter and the correct classification should not be denied if the evidence is available in the hands of the appellant to substantiate that plea. This being a second appellate forum and this plea have been taken before us, it is not just and resonable to deny the opportunity to the appellant to take this plea.

9. As regards the second plea of the learned SDR that the Chapter Note 1(a) of Chapter 84 would become redundant we do not agree with him, because that note only obviously applies to the goods falling under Chapter 68. The goods fall under Chapter 68, if the goods are made of natural graphite, so far as the Tariff sub-heading 6815.10 is concerned. This is well settled, as rightly pointed out by the learned Advocate, from the 3 decisions of the Tribunal cited supra.

10. In view of these decisions, we are of the view that the matter is fit for remand to the original authority to prove before the said authority that the goods imported are made of artificial graphite. Consequently, we set aside the impugned order and allow the appeal by remand, to be decided in the light of the observations by the Bench as above. The original authority should decide the case de novo, in accordance with the principles of natural justice.

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Equivalent 1999 (112) ELT 578 (Tribunal)