1995(03)LCX0162

IN THE CEGAT, SPECIAL BENCH `B2’, NEW DELHI

S/Shri K.S. Venkataramani, Member (T), S.L. Peeran, Member (J) and  P.K. Kapoor, Member (T)

UNION CARBIDE INDIA LTD.

Versus

COLLECTOR OF CUSTOMS, MADRAS

Final Order No. E/125-126/95-B2, dated 23-3-1995 in  Appeal Nos. 2180 & 2182/85-B2

CASE CITED

Collector v. National Carbon Co. — 1989(01)LCX0043 Eq 1989 (041) ELT 0433 (Tribunal)                              [Paras 2, 4]

Advocated By : None, for the Appellant.

 Shri K.K. Jha, SDR, for the Respondents.

[Order per : K.S. Venkataramani, Member (T)]. - These are the appeals directed against the order dated 2-4-1985 passed by the Collector of Customs (Appeals), Madras. The issue relates to the classification of goods described as film lined electrode. The Customs House classified the goods under Heading 85.03 CTA ‘75 as part of dry cell battery whereas the claim of the appellants was for their classification under 85.18/27 (1) CTA ‘75 which covers carbon brushes or carbon electrodes and other carbon articles of a kind used for [sic.] purposes. The appeal against classification of the goods under 85.03 was rejected by the Collector (Appeals) leading to the present appeal.

2. When the matter was called, none was present for the appellants. The appellants vide their letter dated 22-2-1995 requested for decision on merits saying that the Tribunal had in its Final Order No. 11/89-B2, dated 25-1-1989 [reported in 1989(01)LCX0043 Eq 1989 (041) ELT 0433 (Tri.)] disposed an identical appeal.

3. Shri K.K. Jha, ld. S.D.R. submitted that the Tribunal order cited by the Appellants is in favour of the Department and upholds classification of the film lined electrodes as part of batteries under Heading 85.03 CTA ‘75.

4. On a careful consideration of the submissions made, we find that the Tribunal had, after detailed consideration of the technical aspects and the scope of the two competing Tariff Headings - 85.03 and 85.18/27(1) had come to the conclusion as follows :

“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 calls 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 Hc-Craw 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 (sic.) 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 (sic.) 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."

5. The ratio of the above finding squarely applies to the facts of the present case and applying that ratio, we reject the appeals and uphold the impugned orders.

Equivalent 1995 (79) ELT 521 (Tribunal)