1994(12)LCX0081
IN THE CEGAT, SPECIAL BENCH ‘B’, NEW DELHI
S/Shri Harish Chander, President and G.R. Sharma, Member (T)
UNION CARBIDE INDIA LTD.
Versus
COLLECTOR OF CUSTOMS, MADRAS
Final Order No. C/3/95-B2, dated 22-12-1994 in Appeal No. C/1477/85-B2
Cases Quoted
Collector v. National Carbon Co. — 1989(01)LCX0043 Eq 1989 (041) ELT 0433 (Tribunal) [Paras 2, 3, 4]
Order Nos. C/395 to 398/90-B2, dated 28-8-1990 [Paras 2, 4]
Union Carbide India v. Collector — A. No. C/974/85 & C/1146/93, dated 6-9-1994 [Para 4]
Advocated By : None, for the Appellants.
Shri K.K. Jha, SDR, for the Respondent.
[Order per : Harish Chander, President]. - M/s. Union Carbide India Limited have filed an appeal being aggrieved from the order passed by the Collector of Customs (Appeals), Madras. Notices of hearing were issued to the parties. Nobody is present on behalf of the appellants. The appellants vide their letter F. No. 1-3-43, dated 29th November, 1994 have intimated that the matter may be disposed of on merits as the matter is covered by earlier decisions of the Tribunal. Accordingly, we proceed to decide the matter.
2. Shri K.K. Jha, the learned SDR who is present on behalf of the respondent pleaded that the matter is fully covered by earlier decisions of the Tribunal in the case of Collector of Customs, Madras v. M/s. National Carbon Co. vide Order No. 11/89-B2, dated 25-1-1989 [reported in 1989(01)LCX0043 Eq 1989 (041) ELT 0433 (Tribunal)] and thereafter by another Order Nos. C/395 to 398/90-B2, dated 28-8-1990. He pleaded that the product in dispute is `End Board Plastisol’ and is classifiable under Heading 85.03 whereas the appellants had claimed assessment under Heading 85.18/27(1). He pleaded that the earlier decisions of the Tribunal should be followed and the appeal may be dismissed.
3. We have heard Shri K.K. Jha, the learned SDR and have gone through the records. The product in dispute is `End Product Plastisol’. We have duly looked into the earlier decisions of the Tribunal and we do not find any reason to deviate from the earlier decisions. The Tribunal in the case of Collector of Customs, Madras v. M/s. National Carbon Co. vide Order No. 11/89-B2, dated 25-1-1989 had held as under :-
“The point that falls for consideration is whether the goods imported can be considered as carbon electrodes or the same are component parts of primary cell for batteries or are something more than a component part.
We observe that the goods had been described in the records as film lined electrodes. From the description given by the appellants and the authorities quoted by the appellants, it is seen that goods imported are to form the unit primary cells for the flat dry cell battery and all that is required to form a cell is to put a jacket round themselves and to connect the carbon and the zinc ends to the zinc and the carbon ends of other cells respectively for completing the circuit and for making the dry cell battery.
The learned Advocate for the respondents, during the course of the hearing, was asked as to what more was required to complete the unit cell and after going through the books cited by him, he stated that a jacket for separation as described in one of the two books was required to be put.
We observe that in the Mc-Graw Hill Encyclopedia of Science & Technology, cited by the appellants, carbon rod used in the cells has been described as under :
“Carbon rod - the carbon rod used in a cylindrical cell, serves as the conductor of electricity for positive electrode, it also serves as a vent to gas to escape. Carbon rods are usually made of petroleum coke which is calcined, ground mixed with pitch. The ”green" rods are baked form a hard carbon, having low electrical ressance. They may be partially waterproofed pregnation with oil or paraffin wax to prevent lary creepage of electrolyte out of the cell."
So far as the articles which have been imported are concerned, these had been described as duplex electrodes and are not described as carbon electrodes or battery carbons. The respondents have pressed the Interpretative Rule 2(b) in support of their plea for assessment. As pleaded by them, Interpretative Rule 2(b) consists of two parts. The first part relates to the mention of material or substance under any heading and it has been set out that the reference to the material or substance shall be taken to include a reference to mixtures of that material or substance with other materials or substances. This part does not talk about the finished goods made out of the material or substance and this part, therefore, does not advance the plea of the respondents. The second part of the interpretative rule deals with the goods of a given material or substance mentioned under any heading of the tariff and reference is to be taken to include a reference to goods consisting wholly or partly of such material or substance. This part again does not deal with the composite goods made of different materials and the relevant rule for the same is Interpretative Rule 3(b). What has been imported is not something which has been made of a mixture of carbon with something-else, but a composite article which consists of a carbon layer, zinc sheet and a lamination of paper carrying the electrolyte. The plea for applying Interpretative Rule 2(b) is, therefore, not acceptable. Goods have, therefore, to be classified with reference to Interpretative Rule 3. It is seen that the goods have not been described nor they are understood as carbon electrodes, and a more specific item for this is under Heading 85.03.which covers primary cells and parts thereof. What has been imported in fact is more or less a complete cell without the jacket and this can be considered as a component part of the primary cell.
In view of this, the order of the lower authority is not maintainable in law and is set aside and the appeal of the Revenue is allowed."
4. Thereafter the Tribunal had followed this earlier decision in Order Nos. C/395 to 398/90-B2, dated 28th August, 1990. This order was later on followed in the case of Union Carbide India Ltd. v. Collector of Customs, Madras in Appeal Nos. C/974/1985 and C/1146/93, decided on 6-9-1994.
5. In view of the above discussion, we hold that the product in dispute is classifiable under Heading 85.03 and the appeal is dismissed.
Equivalent 1995 (76) ELT 126 (Tribunal)