TMI Blog1987 (1) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... the crude state or which have been washed, crushed, ground, powdered etc. and hence electrolytic manganese dioxide is not classifiable under Chapter 25 but under Heading 28.01/58 C.T.A with countervailing duty under Item 68 C.E.T, demand notices for differential duty were issued to the respondents and confirmed by the Assistant Collector of Customs. In other cases, the goods were originally assessed to duty under Heading 28.01/58 with c.v. duty under Heading 68 of C.E.T and the respondents claimed refund of the differential duty, but the Assistant Collector of Customs, rejected the refund claims. The Assistant Collector held that the goods were correctly assessable under Heading 28.01/58 C.T.A with c.v. duty under Item 68 C.E.T. His findings were, inter-alia, as follows :- No evidence has been produced to show that the Manganese Dioxide under reference is Crude Mined ore. The write up produced state Battery Grade Manganese Dioxide" could be obtained by electrolysis of MNO4 and during the process of Electrolysis MNO2 gets deposited as on the anode. The deposit is hammered out, and ground to a finer mesh and treated with patented process for neutralising the acid that may be enca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore of battery grade Manganese dioxide in some of the tropical African region as well as in Ghana. (v) In the absence of any qualifying words like natural or crude ore forms used in describing the article covered by 25.01/32(3) C.T.A the only conclusion that can be drawn is that all types of Battery grade Manganese Dioxide will be covered by the said sub-heading. (vi) In the light of the literature produced by the Appellants and the report from Electro Chemical Research Institute, Karaikudi, Electrolytic Manganese Dioxide is covered by the sub-heading (3) of Heading 25.01/32 C.T.A." 5. While arguing for the appellant - Collector before us, Shri Sundar Rajan, learned J.D.R has stated that the facts are not in dispute in these appeals. The dispute is about the classification of the goods, which again is dependent on the interpretation of Heading 25.01/32 and Heading 28.01/58 of the C.T.A. Tariff Heading 25.01/32(3) is specific for Battery Grade Manganese Dioxide . Heading 28.01/58 C.T.A is for classification of Chemical elements, inorganic chemical compounds and other products as specified in Note 1 and 2 to Chapter 28 of the Customs Tariff - Not else where specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28 of the Tariff. That the process adopted in its manufacture is a chemical process has not been disputed and that it is a chemical product is also not denied by the respondents. It has also been argued by him that electrolytic manganese dioxide appears serial No. 140 under the head Chemical and allied items in Appendix 5 of the Import Policy for 1982-83. He has further stated that according to Mineralogy Concept, Description and Determines by L.G. Berry and Brian Mason, mineral is a naturally occurring homogeneous solid, inorganically formed with a definite chemical composition and an ordered atomic arrangement. The requirement of a definite chemical composition implies that a mineral is a chemical compound, and chemical compounds have a definite composition which is readily expressed by a formula. Mineral formulas may be simple or complex, depending upon the number of elements present and the proportions in which they are combined. It is important to distinguish between a definite and a fixed chemical composition, many minerals vary in composition (i.e. the composition is not fixed), but this variation is within definite limits........................Minerals are natural obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question to be decided is whether the imported electrolytic manganese dioxide should be classified under Heading 25.01/32(3) or Heading 28.01/58 of the C.T.A with c.v. duty under Item 68 of Central Excise Tariff. The relevant portions of the two Tariff Heads read as follows :- (a) 25.01/32. Mineral substances, not elsewhere specified (including clay, earths, earth colours, natural abrasives, salt, sulphur, slate and stone); cements, all sorts not elsewhere specified (including Portland cement and clinker); lime, plasters, with a basis of calcium sulphate, whether or not coloured, but not including plasters - specially prepared for use in dentistry : xxx xxx xxx (3) Battery grade manganese dioxide. xxx xxx xxx (b) 28.01/58. Chemical elements, inorganic chemical compounds and other products as specified in Notes 1 and 2 to this chapter : (i) Note elsewhere specified. xxx xxx xxx" The learned advocate has strongly argued for assessment of the goods under Heading 25.01/32(3) on the ground that Battery grade manganese dioxide is specifically mentioned against this Heading. Collector (Appeals) has also laid emphasis on this ground while deciding the classification unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tside the purview of chapter 25 of the Tariff Schedule. Therefore, only natural manganese dioxide or manganese dioxide subjected to the processes specified in Chapter Note 1 falls under Sub-heading (3) of the Tariff Heading 25.01/32. Electrolytic manganese dioxide which is a manufactured product does not fall under this sub-heading. Further, this product has various other uses than in dry batteries. 10. As already stated earlier in this order, Electrolytic Manganese Dioxide is a chemical compound. Chemical elements and inorganic chemical compounds fall under Heading 28.01/58 of C.T.A. Electrolytic Manganese Dioxide is not listed in the items specified in Sub-heading (1) of this Heading. It will, therefore fall under Item (1) - Not elsewhere specified , of Sub-heading (1) of Heading 28.01/58. Manganese Dioxide is included in Chapter 28.22 of the Explanatory Notes to the Customs Co-operation Council Nomenclature, on which the Customs Tariff Schedule under C.T.A. 1975 was based. The question of classification of high grade manganese dioxide with 83-85% MNO2 content came up for consideration before this Tribunal in Appeal No. CD (SB) (T) 28/79-C (M/s Toshiba Anand Betteries Ltd. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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