1996(11)LCX0015
IN THE CEGAT, COURT NO. II, NEW DELHI
S/Shri S.L. Peeran, Member (J) and Shiben K. Dhar, Member (T)
TRANSPEK INDUSTRY LIMITED
Versus
COLLECTOR OF CUSTOMS, VADODARA
Misc Order Nos. C/105-128/96-B and Final Order Nos. C/1290-1314/96-B, dated 8-11-1996 in Appeal Nos. C/3716/88-B with S.A.C. 266 to C/289/96-B, C/COD/169-192/96-B2
CASE CITED
UOI v. Garware Nylons Ltd. — 1996(09)LCX0005 Eq 1996 (087) ELT 0012 (SC) [Para 3]
Advocated By : Shri B.G. Sarang, Consultant, for the Appellant.
Shri K.K. Jha, SDR, for the Respondents.
[Order per : Shiben K. Dhar, Member (T)]. - All these appeals are directed against common Order-in-Appeal No. 3155/KK-BCH dated 20-9-1988 passed by the Collector of Customs (Appeals), Bombay disposing of 24 claims. Condonation applications for delay in filing supplementary appeals are taken up and allowed.
All these are taken up for hearing and are being disposed of through this common order.
2. The appellants claimed benefit of concessional rate of duty under Sl. No. 7(2) under Notification No. 44/83 dated 1-3-1983 in respect of Zinc dust imported by them. This claim was rejected by Assistant Collector on the ground that Zinc powders mentioned in Sl. No. 7 covers Zinc Dust also and therefore instead of 40% duty as claimed for “others” under Sl. No. 7 (ii) they are required to pay 60% duty. This claim was upheld by the Collector (Appeals).
3. Arguing for the Appellants the ld. Consultant submits that in regard to classification there is no dispute and the goods are classifiable under heading 79.03. These are classifiable however under 79.03 not as Zinc powder mentioned therein but as most akin to it. Notification on the other hand makes a distinction between zinc powder and flakes only, and others." Therefore, for the purpose of notification zinc dust cannot be equated with zinc powder on the basis of interpretation rules. He submits in trade parlance there is a distinction between zinc powder and dust and it is now settled that goods must be considered as they are understood in common parlance or in commercial or trade cirlces. Dictionary technical or botanical or scientific sense must not prevail. He cites the case of U.O.I. v. Garware Nylons Ltd. - 1996(09)LCX0005 Eq 1996 (087) ELT 0012 (SC) = 1996 (066) ECR (644) SC in support of his case.
4. Arguing on behalf of the Revenue ld. D.R. submits that since the goods have been classified under Heading 79.03 and this item mentions only “powders and flakes”. He also submits, according to the BTN P.1091 Zinc powders and flakes include Zinc dust.
5. We have heard both sides. We find that entry C.T.H. 79.03 refers to wrought plates, sheets and strip of zinc, zinc foil, zinc powders and flakes. The Ld. Consultant strongly contended before us that while classifying the goods under C.T.H. 79.03 goods have been classified not as powder but as a product most akin to powders in accordance with rules of interpretation. We agree that the rules of interpretation are intended for classifying the products but cannot be extended for interpreting a notification. Notification makes distinction between zinc flakes and “others”. If there is dust it is classifiable under 79.03 only as a product most akin to powder but it would not follow that for the purpose of notification also zinc dust should be treated as only zinc powder. Reading the notification as such indicates that what is contemplated is “zinc powders and flakes” under Sl. No. 7(1) and “others” which could otherwise be classified under Heading 79.03. In other words, if zinc dust attracts classification under 79.03 only as a product most akin to powders it cannot be categorised alongwith zinc powder for the purpose of notification. It was strongly pleaded before us by the Ld. Consultant that both in technical as well as in common parlance there is a distinction between zinc powder and dust. Reliance on BTN note by Collector (Appeals) also does not appear to be well placed. BTN page 1091 indicates :
“(2) Zinc powders and flakes of all types (including zinc dust), regardless of their intended use. The provisions of the Explanatory Note to Heading 74.06 apply, mutatis mutandis to the present heading. In practice, however zinc powder is usually obtained by rapidly cooling zinc vapour, while zinc dust (blue powder) is obtained as a very fine but impure powder which is deposited in the retort extensions during the production of spelter (see General Explanatory Note). These products are mainly used to coat other metals by metallic cementation (sheradisation), in the manufacture of paints, as chemical reducing agents etc.”
This itself would indicate that even B.T.N. on which reliance has been placed by the Department makes clear distinction between powder and dust. All these details do not appear to have been gone into by the power authority. In fact the consultant refers to publication “Zinc dust and Zinc powder” by Bradford C. Hafford published by International Lead Zinc Research Organisation Inc., New York to indicate distinction between dust and powder. We find this publication in the foreward indicates that “For the purpose of this manual, condensed Zinc vapour will be termed dust and atmoized molten zinc will be termed powder. In addition to the difference in production mode, these materials also exhibit physical differences. Whereas a particle of zinc dust is fine and spherical, that of zinc powder is coarse and irregular.” Therefore we are of the view that the matter would need fresh look with reference to both technical literature on the subject as well as trade understanding.
5. However, we are informed that out of the 24 claims referred to by Asst. Collector as annexed to his order, 16 claims from Sl. No. 8 to 23 are time barred. Ld. Consultant fairly concedes that he does not press the appeals in regard to these claims which were admittedly filed beyond statutory period of limitation. We reject the appeals in regard to claims at Sl. No. 8 to 23 annexed to the order of Assistant Collector as time-barred and uphold that part of the order of the Assistant Collector insofar as it relates to the limited question of time-bar only.
6. In regard to other appeals relating to refund claims Sl. Nos. 1 to 7 and 24 of the Assistant Collector order we set aside the impugned order and remand the matter to the lower authority for de novo consideration after taking into account the trade understanding as well as technical literature on the subject which brings out distinction between zinc dust and powder. Appellants are at liberty to produce such additional evidence before the Assistant Commissioner as they feel would support their case.
Equivalent 1997 (90) ELT 188 (Tribunal)
Equivalent 1997 (018) RLT 0023 (CEGAT-B)