1993(04)LCX0060
BEFORE THE CEGAT, SPECIAL BENCH ‘C’, NEW DELHI
Ms. Jyoti Balasundaram, Member (J) and Shri P.K. Kapoor, Member (T)
COLLECTOR OF CUSTOMS
Versus
KIRAN X’RAY SCREEN LTD.
Final Order No. 96/93-C, dated 6-4-1993 in C. Appeal No. 212/85-C with C/Cross/332/85-C
CASE CITED
Appellate Collector Order No. 190/91 BCH, dated 7-2-1991 [Paras 6, 11]
Advocated By : Shri L.N. Murthy, JDR, for the Appellant.
Shri A.S. Sunder Rajan, Consultant, for the Respondent.
[Order per : P.K. Kapoor, Member (T)]. - In this case the respondents filed a Bill of Entry Cash No. 6284 dated 26-4-1982 for the clearance of goods declared as “Calcium Tungstate I.E. Lumilux (Luminous Pigment)”. The goods were assessed as ‘luminophores’ under Heading 32.04/12(1) of C.T.A., 1975. After clearance of the goods the importers filed a claim for refund of duty under Sec. 27(1) of the Customs Act, 1962 on the ground that the goods were classifiable under Heading 28.47 of the CTA, 1975. The Assistant Collector rejected the claim on the grounds that the importers had neither adduced any reasons in support of their claim nor had they produced any technical literature showing the properties of the goods in question. Being aggrieved by the order passed by the Assistant Collector the respondents filed an appeal before the Collector (Appeals) who allowed the appeal on the grounds that assessment of “Calcium Tungstate” under Heading 32.04 of CTA, 1975 merely on the grounds that it was luminophores was incorrect since it was specifically included under Heading 28.47 of the CCCN. The Department being aggrieved by the order passed by the Collector (Appeals) has come up in appeal before us. The respondents have also filed Cross-objection.
2. On behalf of the appellants, Shri L.N. Murthy, ld. JDR stated that the goods were declared by the respondents in the Bill of Entry as “Calcium Tungstate I.E. Lumilux (Luminous Pigment)” falling under Heading 32.01. He added that in the suppliers’ invoice also the goods were described as “Lumilux (Luminous Pigment)”. Shri Murthy contended that it was not necessary for the Department to chemically test the goods since on the basis of the description in the invoice the respondents had declared the imported Calcium Tungstate as a luminous pigment. He contended that the test reports referred to by the respondents in the Cross-Objection was not relevant since it related to consignments which were imported subsequent to importation of the goods which were the subject matter of this appeal. He argued that the goods in question being in the nature of a luminous pigment would fall in the category of ‘Luminophores’ and in terms of note 3(d) to Chapter 28 of the Customs Tariff which excluded “Inorganic products of a kind used as luminophore” from the purview of Chapter 28, the disputed goods were correctly classifiable under Heading No. 32.00. He also referred to the explanatory notes to Chapter 28 of the CCCN and pointed out that Luminescent Tungstate of calcium and magnesium are excluded from the scope of Chapter 28 and they are classifiable under Heading 32.07.
3. Appearing on behalf of the respondents the learned Consultant, Sh. Sunder Rajan stated that “Calcium Tungstate” imported by the appellants was an “Inorganic Chemical” and was intended for the preparation of X-Ray screens. He contended that in terms of explanatory note 3(c) to Chapter 28 of CCCN it was classifiable under Heading 28.47. He added that the Assistant Collector was not correct in stating that the refund claim was not supported by any documentary evidence, since the respondents along with their letter dated 8-9-1992 had furnished the Custom House Test Report No. 6701 dated 9-8-1982 in respect of Calcium Tungstate imported under cover of Bill of Entry No. 212 dated 1-9-1982 from the same supplier, which was assessed to duty under Heading 28.01/58(i) of the CTA, 1975 as “Inorganic Chemical”. He referred to the letter dated 13-7-1984 filed by the respondents at Annexure-G of the Paper Book wherein the German suppliers M/s. W. Maier had clarified that Calcium Tungstate supplied by them for the manufacture of X-Ray screens is classifiable under CCCN Heading 28.47 since it is precipitated in amorphous form, and on account of its tetragonal form it is not suitable for use as luminous pigment or ‘Luminophores’ which are classifiable under Heading 32.07. He reiterated his stand that the Calcium Tungstate in question not being luminescent was distinct from products which fall under Chapter 32 of CTA, 1975. He stated that in his Order No. 190/91 BCH dated 7-2-1991 passed by the Collector of Customs (Appeals), he had allowed four appeals filed by the respondents on the grounds that Calcium Tungstate meant for coating X-Ray screens could not be deemed as ‘luminophores’. He argued that the burden of proving that the imported calcium tungstate was ‘luminophores’ was on the appellants which they had failed to discharge. On these grounds he pleaded for the rejection of the appeal.
4. Dealing with the points raised on behalf of the respondents, Shri L.N. Murthy, the learned JDR stated that on the basis of the suppliers invoice the respondents had declared the goods in the Bill of Entry as a ‘Luminous Pigment’ and they had also classified it under Heading 32.01/12(1). He stated that the Notes under Chapter 28 of CCCN provide that ‘Luminescent Tungstate’ (e.g. of calcium or magnesium), were classifiable as inorganic luminophores under Heading 32.07. He added that according to the notes to Heading 32.07 luminophores are used for the preparation of luminous paints and for coating screens for television, oscillograph, radiography, radioscopy, radar apparatus and fluorescent tubes. He contended that the disputed Calcium Tungstate was a luminous pigment according to the suppliers invoice and being meant for coating X-Ray screens was correctly classifiable under Heading 32.01. He stated that Order No. 191/91 BCH dated 7-2-1991 passed by the Collector of Customs (Appeals), Bombay, could not be of any assistance to the respondents since the different test reports referred to in the order were found to be at variance with each other and could not be relied upon.
5. We have examined the records of the case and considered the submissions made on behalf of both sides. It is seen that the only point that arises for consideration in this case is whether Calcium Tungstate imported by the respondents against Bill of Entry Cash No. 6284 dated 26-4-1982 was classifiable under Heading 32.04 of the CTA, 1975 under which it was assessed or it was covered by Heading 28.47 of CTA, 1975 as claimed by the respondents.
6. It is seen that in this case the only ground on which the Collector (Appeals) upheld the classification of the Calcium Tungstate imported by the respondents under Heading 28.47 of CTA, 1975 was that it was not a product of a kind used as ‘luminophores and it was also specifically covered under Heading 28.47 of the CCCN. Apart from reiterating these observations of the Collector (Appeals) before us, the respondents have placed reliance on the letter dated 13-7-1984 from the suppliers M/s. W. Maier of Germany, wherein it has been stated that the Calcium Tungstate in question was classifiable under Heading 28.47 of the CCCN since it was meant for the manufacture of X-Ray screens and such Calcium Tungstate cannot be categorised as ‘luminophore’ falling under Heading 32.07 of the CCCN. In this regard the respondents have also referred to the Order No. 190/91 BCH dated 7-2-1991 passed by the Collector of Customs (Appeals) wherein it was held that ‘Calcium Tungstate’ imported in the disputed consignments was not usable as a ‘luminophore’ and accordingly was classifiable under Heading 28.41 of the CTA, 1975.
7. The Schedule to the Customs Tariff Act, 1975 prior to its amendment on 1-3-1986 was based on the Customs Cooperation Council Nomenclature commonly known as ‘CCCN’. The Notes to the ‘CCCN’ though not having any statutory force were accepted as having a greatdeal of persuasive value for the purpose of determining the classification of goods under the Schedule to the CTA, 1975. We, therefore, consider it desirable to refer to the following extracts from the notes to Headings 28.47 and 32.07 of the CCCN:
Section VI
V-28.47
(8) Tungstates (Wolframates). Tungstates, pertungstates are derived from the normal tungstic acid (H2WO4) and other tungstic acids
The principal of these salts are:
(a) ......
(b) ......
(c) Calcium tungstate. White, glossy scales, insoluble in water; used for preparing X-Ray screens and fluorescent tubes. Native is excluded (Heading 26.01).
(d) ......
(e) ......
The heading excludes:
(a) Natural tungstates [e.g. of calcium or manganese (hubenerite) and of iron (ferbesite) Heading 26.01]
(b) Luminescent tungstates (e.g. of calcium or mangnesium), classified as inorganic luminophores (Heading 32.07).
SECTION VI 32.07
(b) Inorganic products of a kind used as luminophores.
The heading excludes :
(a) Natural tungstates of manganese (huberite) and of iron (ferberite) (Heading 26.01).
(b) Luminescent tungstates (e.g., of calcium or mangnesium), classified as inorganic luminophores (Heading 32.07)."
On a plain reading of the Note under sub-heading 32.07 reproduced above, it follows that Calcium Tungstate is an inorganic product which is used as ‘luminophores’ and it does not contain any other substance. It is a metallic salt which owes its luminescent property not to the presence of any activating agent but to a treatment giving it a very special crystalline structure. The same chemical in a non-luminescent (e.g., less pure, different crystalline structure) and “amorphous” form is excluded from Heading 32.07 and is used as a reagent which falls under Heading 28.47. Thus calcium tungstate when in pure form has luminescent properties and is used as a ‘luminophores’ for the preparation of luminous paints and for coating screens for television, oscillograph, radiography, radioscopy and radar apparatus and fluorescent lighting tubes.
8. It is seen that on the basis of the description of the goods in the suppliers invoice, the disputed goods were declared by the respondents in the relevant Bill of Entry as “Calcium Tungstate I.E. Lumilux (Luminous Pigment)” classifiable under Heading 32.01/12(1) of the CTA, 1975. The imported Calcium Tungstate was indisputably a luminous pigment having luminescent properties which as claimed by the respondents was meant for the preparation of X-Ray screens. Hence, in terms of the notes under Heading 32.07 extracted above it was nothing but as a ‘luminophores’. For these reasons, we are inclined to agree with the learned JDR that on the basis of description and classification of the goods as declared by the respondents in Bill of Entry. On the basis of the suppliers invoice, the goods were classifiable under Heading 32.01 as ‘luminophores’ and it was not necessary for the Department to subject them to chemical test.
9. According to the notes under Heading 32.07 of the CCCN only non-luminescent variety of Calcium Tungstate, having lesser purity and meant for use as reagent is classifiable under Heading 28.47. According to Chamber’s Dictionary of Science and Technology “reagent” is a “substance or solution used to produce a characteristic reaction in chemical analysis.” Further according to the same dictionary the term “Chemical analysis” stands for “splitting of a material into its component parts or constituents by chemical method to determine the components of the material.” It is seen that according to the letter dated 13-7-1984 from the suppliers M/s. W. Maier disputed ‘Calcium Tungstate" was meant for making X-Ray screens and the respondents have also claimed that they had imported the goods in question for the manufacture of X-Ray screens. Evidently the imported ‘Calcium Tungstate’ was not a variety which is used as a laboratory reagent. For these reasons as well in our view, the classification of the disputed ‘Calcium Tungstate’ under Heading 28.47 was ruled out.
10. In view of the above discussion it is evident that in arriving at the finding that the imported ‘Calcium Tungstate’ had to be deemed as specifically covered by Heading 28.47 of the CCCN, the Collector (Appeals) had failed to take into account the items excluded from the Heading 28.47 and also the notes under Heading 28.47 of the CCCN.
11. In support of their case the respondents have relied on the Order No. 190/91 BCH dated 7-2-1991 passed by the Collector (Appeals). We find that in this order the Collector (Appeals) while allowing four appeals filed by the respondents had held that ‘Calcium Tungstate’ as classifiable under Heading 2841 CTA,1975 mainly on the grounds that the test reports furnished by the Custom House laboratory were not found to be reliable. Hence, we are inclined to agree with the learned JDR that this order of the Collector (Appeals) cannot be of any assistance to the respondents.
12. We, therefore, hold that the imported ‘Calcium Tungstate’ which was meant for the manufacture of X-Ray screens was correctly classifiable under Heading 32.04 as originally assessed. We, therefore, set aside the order passed by the Collector (Appeals) and allow the appeal filed by the Revenue.
Equivalent 1993 (68) ELT 872 (Tribunal)