1996 (11) TMI 140 - AT - Customs

Summary

Issues:
1. Classification of Zinc dust under Notification No. 44/83.
2. Interpretation of the distinction between zinc powder and zinc dust.
3. Time-barred claims and their rejection.

Detailed Analysis:
1. The appeals were filed against Order-in-Appeal No. 3155/KK-BCH dated 20-9-1988 by the Collector of Customs (Appeals), Bombay, concerning the classification of Zinc dust under Sl. No. 7(2) of Notification No. 44/83. The Assistant Collector rejected the claim for a concessional duty rate, stating that Zinc powders mentioned in the notification cover Zinc Dust, attracting a higher duty rate of 60%. The Collector (Appeals) upheld this decision. The Appellants argued that while the goods are classifiable under heading 79.03 as Zinc powder, they should be considered most akin to it, distinct from Zinc powder, for the purpose of the notification. The Appellants relied on the case law and emphasized the trade parlance distinction between Zinc powder and dust, advocating for a common understanding interpretation rather than a technical or scientific one.

2. The Revenue argued that since the goods were classified under Heading 79.03, which includes Zinc powders and flakes, Zinc dust should be considered as part of this category. They referred to the BTN note stating that Zinc powders and flakes encompass Zinc dust. However, the Tribunal noted that while classification under 79.03 may treat Zinc dust as akin to powder, the notification specifically distinguishes between Zinc flakes and "others," implying a separate categorization for Zinc dust. The Tribunal highlighted the technical and trade literature distinctions between Zinc dust and powder, indicating a need for a fresh examination based on these factors.

3. Out of the 24 claims, 16 were found to be time-barred, and the Appellants did not contest this limitation. The Tribunal rejected these time-barred claims from Sl. No. 8 to 23, upholding the Assistant Collector's decision on this aspect. However, for the remaining refund claims at Sl. Nos. 1 to 7 and 24, the Tribunal set aside the order and remanded the matter for reconsideration, instructing the lower authority to consider trade understanding and technical literature regarding the differences between Zinc dust and powder. The Appellants were granted the opportunity to present additional evidence to support their case during the fresh consideration by the Assistant Commissioner.