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Saurashtra Chemicals Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1983)LC1504DTri(Delhi)
AppellantSaurashtra Chemicals
RespondentCollector of Customs
Excerpt:
.....party insisting on appropriate classification of the goods imported by them which are described as carbon rings as covered by item 1 of the bill of entry dated 18-10-1976 and which are detailed at items 1, 2 and 3 of the invoice, enclosed therewith. the appellant contends that these carbon rings have been described as per invoice as spares for turbosets. they thus plead that such carbon rings being parts of the machinery, have to be classified under b.t.n. heading 84.65 and that the authorities have taken an erroneous view holding that they are classifiable under heading 68.16.4. shri k.v. kunhikrishnan vehemently defended the orders passed by the lower authorities by referring to the explanatory notes to the b.t.n.(cccn) and contended that since all mineral articles "not elsewhere.....
Judgment:
1. M/s. Saurashtra Chemicals of Porbandar filed revision petition before the Central Government dated 25-1-1978, feeling aggrieved by the Order in Appeal dated 24-12-1977 passed by the Appellate Collector of Customs, Bombay dismissing their appeal which they have filed against the order of the Assistant Collector of Customs, Bombay passed on 28-3-1977. This revision petition has been received as an appeal in the Tribunal by virtue of provisions of section 131B of the Customs Act and is being disposed of as such.

2. On the appeal being taken up, we find no representation by the appellant nor any request for adjournment, although we find that notice for hearing for 6-4-1983 was sent on 15-2-1983 by registered post.

Presuming this notice having been duly served and finding not only failure to turn up for hearing, but even requisition for certain documents has also not been complied with, we decide to proceed with the appeal exercising our discretion under rule 20 of the Customs, Excise & Gold (Control) Appellate Tribunal (Procedure) Rules, 1982. For the Revenue, Shri K.V. Kunhikrishnan, appears.

3. The dispute has been raised by the party insisting on appropriate classification of the goods imported by them which are described as carbon rings as covered by Item 1 of the Bill of Entry dated 18-10-1976 and which are detailed at Items 1, 2 and 3 of the Invoice, enclosed therewith. The appellant contends that these carbon rings have been described as per Invoice as Spares for Turbosets. They thus plead that such carbon rings being parts of the machinery, have to be classified under B.T.N. heading 84.65 and that the authorities have taken an erroneous view holding that they are classifiable under heading 68.16.

4. Shri K.V. Kunhikrishnan vehemently defended the orders passed by the lower authorities by referring to the Explanatory Notes to the B.T.N.(CCCN) and contended that since all mineral articles "not elsewhere specified", are specifically classifiable under Tariff Heading 68.01/16, these Carbon rings could not go under the heading of "Machinery Parts not elsewhere specified" as pleaded by the appellant.

5. In spite of no representation from the side of the appellant, we deem it to be a matter deserving full consideration. On going through the grounds of appeal, we find it specifically pleaded that these goods imported by them were of two types, namely (1) Labyrinth rings and (2) carbon rings, both serving the same purpose and whereas the Labyrinth rings were assessed under Heading 84.65, as pleaded by the party, the carbon rings had been assessed to duty under heading 68.16 and charged to 100 per cent customs duty as against 60% leviable under Tariff Entry 84.65. This plea of the party, we find, is fully supported from the Bill of Entry which is common for both types of goods; inasmuch as whereas both categories have been described as "Spares for Turbosets, carbon rings have been assessed under Entry 68.01/16, whereas Labyrinth rings have been assessed for the purpose of customs duty under Entry 84.65. In the Invoice, both set of books have been described as "Spares for Turbosets.

6. There is no indication in the impugned order that description given in the Invoices by the foreign buyer was not acceptable. In the note submitted with the appeal, the function of both sets of rings is identical and there could be no doubt that they are being used as parts of the machinery. Revenue also concedes that a specific heading has to be preferred to that of a generic description but we find that this accepted principle is wrongly and erroneously applied in the present case. We, therefore, are of our clear view that description as "parts of machinery not elsewhere specified" is of more specific description as against the absolutely general description covered by Tariff Item 68.01/16(1). We come to this conclusion because we find that articles of carbon do not find any specific mention even under 68.01/16, as in respect of other mineral articles, detailed in 68.01/16(2).

7. In this connection, we would also like to observe that the Explanatory Notes to the CCCN can only be taken as guidelines but not conclusively determinative of a matter which has to be decided on a comparative study of the Tariff Entries given in the Schedule to Customs Tariff Act. So, merely because sec. 16 of Chapter 68 of the Explanatory Notes to the CCCN includes articles of carbons also, would not mean that these types of goods which have been specifically described in the foreign seller's Invoice as "Spares of Turbosets", which will definitely take them under the category of "Machinery parts" and they are apparently satisfying other conditions laid for goods, envisaged by Tariff Item 84.65 and the Customs authorities having themselves accepted the classification of one type of rings similarly described as falling under Item 84.65, there is no justification; the view that merely because the other set of goods is made of carbon, they are to be taken out of the specified description of "machinery parts", and go under the wide general description as "Mineral articles not elsewhere specified".

8. We also feel that such an interpretation would lead to absurd results because parts of machinery may be made of different matters, such as, steel, iron, graphite, nickel and other metals but their classification as the numerous entries under Tariff Item 84 indicate, is with reference to their nature namely, as parts of machinery, and not with reference to the material of which they are made of.

9. We, therefore, deem it a fit case to allow the appeal and direct that refund claim of the party be allowed after assessing the goods to custom duty with reference to Entry 84-65. AS the refund claim has been filed as far back as in October, 1976, it is directed that refund be allowed to the party as directed within two months of the receipt of issue of this order.

10. I have perused the statement of my learned colleagues on the Bench, but I find myself in disagreement with their conclusion as to the classification of the subject goods under the Customs Tariff Schedule.

The competing headings are 68.01/16 and 84.65. On the facts emerging from the record, there seems little doubt that the carbon rings in question are parts of machinery not having any electrical features. It is also clear that the said carbon rings do not fall within Headings Nos. 84.01/02 to 84.64 of Chapter 84. In the circumstances, if the said carbon rings fall under Chapter 84, they should fall under Heading No.84.65 which covers "machinery parts, not containing electrical connectors, insulators, coils, contacts or other electrical features and not falling within any other heading in this chapter". In this connection it has to be noted that statutory Note l(a) to Chapter 84 provides that :- (a) Mill stones, grind stones and other articles falling with Chapter 68 ; Now, Heading No. 68.01/16 covers inter alia articles of stone, of plaster, of cement, of" asbestos, of mica or of similar materials.

Carbon is a mineral substante and articles of carbon, such as carbon rings in question do fall under headings in Chapters 1 to 67 and 68 to 100 of the Customs Tariff Schedule. Therefore, the carbon rings fall within the description "articles of other mineral substances, not elsewhere specified or included".

11. This position holds goods even if the carbon rings are held to be parts of machinery. This is because of the statutory Chapter Note 1 (a) to Chapter 84 to which reference was made earlier. In the result, I am of the view that the carbon rings in question have been correctly classified under Heading No. 68.01/16(1). The appeal thus fails.


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