TMI Blog1978 (11) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... stion. In favour of assessee. - 571 of 1969 - - - Dated:- 30-11-1978 - R S. Sarkaria, V.D. Tulzapurkar and A.P. Sen, JJ. [Judgment per : Sarkaria, J.] 1. This is an appeal by special leave against an order of the Government of India, Ministry of Finance (Department of Revenue and Insurance). The order was passed by Shri B. Sen, Commissioner (Revision applications), Government of India. Indian Hard Metal (P) Ltd., the appellant, had imported 15 metric tonnes of wolfram ore from London. The Customs authorities classified the said ore under Item 87 of the Indian Customs Tariff and charged duty at the rate of 60 per cent ad valorem amounting to Rs. 62,871.03 P., instead of classifying the imported ore either under item 26 or Item 70 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss which involves crushing, washing and magnetic separation. It does not bring about any chemical change in the metal. At the mine pit in its natural form, the ore is not of marketable quality because the tungsten in it, then, is hardly 0.5 to 2 per cent. By the aforesaid concentrating process, the ore is converted into ore of commercial quality. It is maintained that in commercial parlance wolfram ore of marketable quality must contain a minimum of 65% to 70% of the metal, and in one of better quality, the content may be as high as 79%. Even after being subjected to such process, the ore concentrate does not cease to be tungsten ore within the contemplation of Item 70 (7) of the Indian Import Tariff. In support of his contentions, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c tonnes of wolfram concentrate from Russia under a contract which prescribed minimum contents of 65% of WO3 in the concentrate. The Customs authorities levied duty at the rate of 60% ad valorem under Item 87 of the First Schedule. The appellant claimed refund on the ground that no duty was leviable as the goods imported was an "ore" and fell under Item 27 or 70(7) of the Import Tariff. The Assistant Collector of Customs held that the appellant was not entitled to refund because the terms "ore" mentioned in the text of Item 26 is confined to articles which are in form and condition in which they are mined and not as wolfram ore concentrate in powder form as in that case. On appeal by the importer, the Appellate Collector held that the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial. What has to be seen is what is meant in international trade and in the market by wolfram ore containing 60% or more WO3. On that there is a preponderant weight of authority both of experts and books and of writings on the subject which show that wolfram ore when detached and taken out from the rock in which it is embedded, either by crushing the rock and sorting out pieces of wolfram ore by washing or magnetic separation and other similar and necessary process, it becomes a concentrate but does not cease to be ore." (emphasis added) There is ample authority for the view that the tungsten content in the wolfram ore of marketable quality may vary from 60 to 79 per cent and a concentration within these limits of the metal in the ore can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Scheelite, however, is non-magnetic, but when it occurs with garnet, as it does in Tasmania, the garnet may be removed magnetically. The concentration of wolframite ores is difficult on account of their micalike formation. Excessive crushing leads to high losses in tabling and as far as possible the ore should be separated when coarsely crushed." (emphasis supplied) There is on the record another Certificate in the form of a letter dated February 3, 1965, from the Director, National Metallurgical Laboratory, Jamshedpur, addressed to the Collector of Customs, Calcutta, in which it is opined: "The wolfram ore is always selectively mined in the technical terminology ...... such "selective mining" does not constitute a manufacturing process. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Certificate from this Laboratory was relied upon as authentic expert opinion in the earlier case also, decided by this Court. 7. No authority expert opinion has been cited before us that a concentration of 75 per cent tungsten in wolframite ore of commercial quality, cannot be achieved merely by selective mining, i.e. the physical process of crushing, washing, gravitation, magnetic separation or the like. Nor is there any evidence on the record to show that the mined ore was subjected to any chemical process which caused a change in the chemical structure of the OIC. The finding of the Appellate Collector of Customs that such a high degree (75%) of tungsten metal virtually free from impurities in the material could be attained only by so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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