1. The goods whose classification under the First Schedule to the Indian Tariff Act, 1934 (hereinafter referred to as the I.C.T.) is in dispute, are three consignments of tungsten wire of 650 micron thickness. The custom authorities assessed the goods to bas'- duty under item 73(23) I.C.T. at 100% ad valorem plus auxiliary duty at 20% ad valorem. The Appellant's claimed re-assessment of the goods under Item 70(1) of the I.C.T. and consequential relief by way of refund of the excess duty collected. The lower authorities rejected the claim on the ground that the tungsten wire in question was resistence wire whether it was used for general lighting or heating and therefore its classification as resistence wire under Item 73(23) of the I.C.T. was correct. The Appellants filed a revision application before the Central Government against the Appellate 'Collector's order. The revision application (hereinafter referred to as appeal) has been transferred to this Tribunal under Section 131 (b) of the Customs Act, 1962 for disposal as if it were an appeal presented before it.
2. Before we consider the Appellant's contentions, we may note the nomenclature of the two competing items of the Indian Customs Tariff: All non-ferrous alloys and manufactures of metals and alloys not otherwise specified.
3. In the memorandum of appeal, the Appellants have submitted that the1" goods are thick tungsten wire (650 micron 0.650 mm) which do not constitute electrical resistence wires, It is the raw material for drawing into thin wires of diameter as low as 18 micron. The thin wire is further wound round a thin molybdenum wire (drawn from 820 micron wire) to make a primary coil which is wound round another thin molybdenum wire to make a coiled coil. The coiled coil is annealed to induce a preferred crystal structure and then cut to individual coils.
At this stage the molybdenum wire is dissolved leaving the tungsten wire to be used in electrical lamps, In this connection, the Appellants referred to the scheme of classification under the Brussels Tariff Nomenclature wherein tungsten wire and electrical resistence wire of nickel chrome and other nickel alloys have been put under different classifications i.e. tungsten wire under Heading No. 81.01/04 and electrical resistence wire under Heading No. 75.02. This would show that the two products were distinct and different. The Appellants also pointed out that in respect of earlier consignments the customs authorities had accepted the Appellant's claim and granted consequential refund.
4. The appeal was heard on 18.3.1983 when Shri N.C, Banerjee, Head of the Shipping Department of the Appellant's firm accompanied by Shri R.H. Rao, Technical Manager, Wire and Coil Factory of the Appellants firm appeared for the Appellants and Shri K.V. Kunnikrishnan, J.D.R.for the Department. Shri Banerjee reiterated the submissions put forth in the appeal memorandum. In particular he stressed on the fact that in two cases where the customs authority had demanded payment of alleged short levies on identical goods on similar grounds, they had later withdrawn the demands accepting the Appellant's contentions in the matter. He also referred to the Appellate Collector's order. No.S/49-1362/79 dated 9.10.1979 in which also he had allowed an appeal which turned on a similar issue, accepting the Appellant's contentions.
Shri R.H. Roy submitted that the imported goods could not be used as heating elements having regard to their properties.
5. Shri Kunnikrishnan had no particular submissions to make in respect of the Appellants contention.
6. We have considered the submissions put forth in the memorandum of appeal and. those advanced during the hearing. The Appellant's contention that the imported goods, namely, tungsten wire of 650 micron thickness required further processing and needed to be drawn into wires of less thickness before they could be put to use as electrical resistence wire for beating or lighting purposes has pot been rebutted by the Department. On the other hand from the evidence produced by the Appellants, it is seen that the Department has granted relief to the Appellants in the shape of withdrawal of short levy notices or grant of refund, accepting the Appellant's contention made on lines similar to those put forth before us. We, therefore, do not see any basis for up-holding the orders of the lower authorities which in consequence, we hereby set aside. We allow the appeal and direct that the imported tungsten wire of 650 micron thickness be re-assessed to duty under Item No. 70(1) of the Indian Customs Tariff Schedule and that the consequential relief be granted to the Appellants by Assistant Collector of Customs, Bombay within two months from the date of communication of this order.