Decided on July 16,1991



S.L. Peeran, Member (J) - (1.) THE appellants are Dry battery cell manufacturer. They imported "Moanda High Grade Manganese Dioxide" which was assessed to duty under Tariff Heading 25.01/32(3) of the Customs Tariff Act, 1975. They filed refund claim seeking reclassification under Tariff Heading 26.01(1) CTA 1975 read with notification No. 125 -Cus/76. This claim for reclassification was rejected by the Assistant Collector of Customs, Calcutta by his order -in -original. The Assistant Collector has examined their goods in the light of the literature produced by them and also in the light of Explanatory Notes of Heading 26.01 of CCCN and has rejected their claim for re -assessment under Tariff Heading 26.01(1) CTA. He has held on the basis of the literature produced by the importer that the imported goods are exclusively prepared and meant to be used for battery cell industry and not for metallurgical use. He has held that the same is classifiable under Heading 25.01/32(3) of CTA 1975.
(2.) THE Collector (Appeals) has also examined the appellants' claim and after detailed examination of their case, has not found any merit in their claim and has rejected their appeal. The Collector (Appeals) has held - "The imported goods are essentially mineral substance though obtained by highly selective mining which have been subjected to certain benefication process. There is no chemical transformation and essential characteristics of the product as mineral substance remain unchanged. Only difference is that this particular grade has only certain special characteristics of electro chemical reactions. The process which is required to be completed in this grade for use as raw material for the manufacture of dry -cell batteries is powdering etc. and this process cannot change the character and classification of the goods. Thus it seems reasonable to hold that battery grade manganese dioxide ore being ipso facto not actually used in metallurgical industry for extraction of manganese metal is outside the scope of Chapter 26 of CTA and is rightly classifiable under Heading 25.01/32(3)." Aggrieved by this order, the appellants have filed this appeal.
(3.) WHEN the matter came up for hearing, both the sides brought to our notice the ruling rendered by the Hon'ble Supreme Court of India in the case of Toshiba Anand Batteries Ltd. v. Collector of Customs, Cochin [1991 (51) ELT 200 (SC)]. The Hon'ble Supreme Court has held that Electrolytic Manganese Dioxide of 91% purity for the manufacture of Dry batteries are classifiable under Heading 28.01/58 and not under Heading 25.01/32 as claimed by the importer. The Hon'ble Supreme Court further held that if the Battery grade manganese dioxide were not available for import, except in the purity form i.e. in the upgraded form, the assessee's claim would be well founded and it will be covered by Item 25.01/32(3) even though manufactured under an electrolysis process. The Court further held that since it has been found that Battery grade Manganese Dioxide is available in crude unrefined form only, that type of it is covered by Item 25.01/32(3). In the present case, the imported material is in crude unrefined form to be covered under Item 25.01/32(3). As can be seen from the order -in -original, the ore has undergone several processes of refinement giving a minimum of 81.5% natural manganese dioxide but involving no chemical process. In view of this, the imported material can be held to be classifiable under Item 25.01/32(3) as held by the Hon'ble Supreme Court in the case referred to above. The appellants' claim under Tariff Heading 26.01/(1) CTA 1975 has riot been examined by the authorities or by the Hon'ble Supreme Court in the referred case (supra), but has examined the Heading 28.01/58 which has been held to be the correct heading for classifying the imported goods. We do not find any reason to remand the matter for reconsideration as sought by the learned Advocate Shri V. Lakshmi Kumaran. We find that the ratio of the Hon'ble Supreme Court is applicable to the facts of this case and applying the said ratio, we hold that the imported item is classifiable under Heading 25.01/32(3) and we dispose of this appeal accordingly. K.S. Venkataramani, Member (T);

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