1991(12)LCX0019

BEFORE THE CEGAT, SPECIAL BENCH ‘D’, NEW DELHI

S/Shri G.P. Agarwal, Member (J) and N.K. Bajpai, Member (T)

MISHRA DHATU NIGAM LTD.

Versus

COLLECTOR OF CUSTOMS

Order No. C/506/91-D, dated 17-12-1991 in C/Appeal No. 2601/88-D

Advocated By: None, for the Appellants.

Shri L. C. Chakraborty, S.D.R., for the Respondent.

[Order per : N.K. Bajpai, Member (T)]. - The appellants had imported a consignment of 50 pellets of Ankerhearth NB-70 from Austria which was assessed to duty under Chapter Heading 69.10/14 of the Customs Tariff as “Other articles including sanitary fixtures, tableware and domesticware”. A claim for - reassessment under Chapter Heading 69.01/02 as refractory constructional material was rejected by the Deputy Collector of Customs on the ground that the goods were in lump form and, as such, they could not be said to be covered by Chapter Heading 69.01/02. On appeal, the Collector of Customs (Appeals), Bombay rejected the appeal on the ground that in view of Note (1) to Chapter 69, that Chapter applied to ceramic products which have been fired after shaping, i.e. only to made up articles, and the goods, in question, being raw-materials, they were not classifiable under Heading 69.01/02.

2. The appellants claim before us is that Ankerhearth NB-70 Ramming Mass imported by them is a refractory constructional material and is correctly classifiable under Chapter Heading 69.01/02 and it cannot be classifiable under Heading 69.10/14 which deals with sanitary fixtures, tableware and domesticware or Heading 38.01/19 (1) which deals with Miscellaneous Chemical Products not elsewhere specified. Although there is a reference in ground No. (4) of the grounds of appeal to the “test report of the Customs” according to which Ankerhearth NB-70 is a ceramic/refractory constructional material, no such test report has been produced before us; nor have we found any reference to such a test report in the orders of the lower authorities. A photocopy of Manufacturer’s Test Certificate (Certificate of Analysis) dated 18-2-1982 shows its composition to be as under :

3. The appellants have requested that the appeal may be decided on merits as they were unable to appear for a hearing. They have, in particular, drawn our attention to ground No. (5) in their Memorandum of Appeal according to which, if the Tribunal is of the view that Ankerhearth NB-70 would be classifiable under Heading 38.01/19(1) (duty being the same as under Heading 69.01/02), the appellant urges that the assessing authority be directed to reassess accordingly and the difference of Rs. 93,027.20 be refunded to them.

4. We observe from the order of the Collector of Customs (Appeals) that it was he who had, while rejecting the claim for re-assessment under Heading 69.01/02, remarked as under:

‘’... If the product is considered to be refractory cements or mortors for furnace linings, etc., these may be rightly classifiable under Heading 38.01/19(1). However, it is not subject matter of this appeal."

5. While arguing for the Department, Sh. L.C. Chakraborty, the Ld. S.D.R., submitted that since the goods were imported in powder form, they could not be classified under Heading 69.01/02 which talks of definite shapes.

6. Heading 69.01/02 of the Customs Tariff at the material time was as under :

“Heat-insulating bricks, blocks, tiles and other heat insulating goods of siliceous fossil meals or of siliceous earths (for example, Kieselguhr, tripolite or diatomite); refractory bricks, blocks, tiles and similar refractory constructional goods." (Emphasis supplied)

7. While explaining the meaning of the word “similar”, the Ld. S.D.R. cited the decision of the Supreme Court in Nat Steel Equipment Private Ltd. v. Collector of Central Excise, 1988 (34) ELT 8 and read out from para 5 of this judgment which is as under :

“......The expression ”similar" is a significant expression. It does not mean identical but it means corresponding to or resembling to in many respects; somewhat like; or having a general likeness. The statute does not contemplate that goods classed under the words “of similar description” shall be in all respects the same.......".

8. Shri Chakraborty suggested that in view of the foregoing, classification under Chapter Heading 69.01/02 was ruled out. He submitted that the correct classification would be under Chapter Heading 38.01/19 as “Miscellaneous Chemical Products” which is the alternative claim before us.

9. We have considered the matter and perused the case records. We agree that the goods were not covered by Chapter 69 in view of note (1) which restricts the Scope of the Chapter to be taken to apply only to ceramic products which have been fired after shaping. Since Ankerhearth NB-70 is in lump form, it gets excluded from Chapter 69. The only other place where it would then be classifiable is Chapter 38 as Miscellaneous Chemical Products. The appellants as well as the Ld. S.D.R. have advocated classification under sub-heading 38.01/19(1) which is as under :

“Chemical products and preparation of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries not elsewhere specified or included:

(1) Not elsewhere specified."

10. We observe that none of the sub-items (2) to (9) of sub-heading 38.01/19 covers the goods by its composition or description. In these circumstances, it has to be taken to the residuary entry (1). We, accordingly, direct the classification of Ankerhearth NB-70 under sub-heading 38.01/19(1) of the Customs Tariff. The orders of the lower authorities are set aside and the appeal is allowed with consequential relief.

Equivalent 1992 (61) ELT 313 (Tribunal)