ORDER
G. Sankaran, Sr. Vice President
1. M/s. Lakhanpal National Limited (the appellants) are engaged in the manufacture of Leclanche Cells known as dry cell batteries. For this purpose they imported from time to time carbon rods. Thirteen such consignments were imported by the appellants which were assessed to Customs duty under Heading No. 85.18/27(1) of the First Schedule to the Customs Tariff Act, 1975 and to additional duty of Customs equivalent to the Excise duty leviable under Item No. 67 of the First Schedule to the Central Excises and Salt Act, 1944 (the said Schedule is hereinafter referred to as “the GET”). The appellants cleared the goods on payment of duty so assessed but filed claims for refund of additional duty of customs on the ground that the imported carbon rods fell under Item No. 68 and not under Item No. 67, CET. The Assistant Collector rejected these claims, some of them as unsubstantiated and the others on the ground that battery carbons imported by dry cell battery manufacturers had been tested at the National Test House, Calcutta, by using x-ray diffraction method and had been identified to be made of graphite. On this basis, the Assistant Collector held that the assessments in these cases of the goods as graphite electrodes was in order. In Appeal Assistant Collector’s orders were upheld by the Collector (Appeals), who observed in his order (presently impugned before the Tribunal) that the appellants had not substantiated with evidence their claims that the goods were carbon electrodes. He held that graphite being an allotropic form of carbon and the goods having been identified as made of graphite, the assessments were in order.
2. We have heard Shri E.P. Bharucha and Shri M.P. Bharucha, Advocates, for the appellants and Shri K.C. Sachar, D.R., for the respondent. 3. During one of the hearings we had felt that it would be necessary for a proper appreciation of the dispute that the test reports referred to. and relied upon, by the Assistant Collector in some of his orders should be made available for perusal. This was with a view to see whether the said tests were on samples drawn from the consignments in dispute in these appeals. Accordingly, the hearing was adjourned from 16-4-1987 to 27-5-1987 and further to 29-6-1987. Shri Sachar, D.R., reported that the said test reports were not available as per information received from the Collector. We had, therefore, no alternative to proceeding with the matters on 'lie basis of the available record. This circumstance is significant because it is the grievance of the appellants that no samples were drawn from their consignments and yet the results of test conducted on samples from other consignments were sought to be applied to their goods. Further, the test reports relied upon by the department were not disclosed to the appellants. They were, therefore, deprived of an opportunity to rebut the findings of the National Test House and put forth their case. The department has not rebutted these contentions. This fact, coupled with the non-production before us of the test reports relied upon by the lower authorities against the appellants, can only lend support to the genuineness of the appellants' grievance. Unless the goods subjected to tests and the goods in dispute now are shown to be identical in nature, the results of tests conducted on other consignments cannot be applied to the present goods. In any event, the non-disclosure of the test reports has resulted in denial of proper opportunity to the appellants to put forth their case. 4. The appellants have placed in their paper-books certain affidavits in support of their contention that the goods imported were carbon and not graphite rods. However, since no steps had been taken by the appellants to have these affidavits admitted as evidence, they have been excluded from consideration. 5. There is no dispute that the goods were described in the import documents as carbon rods. Carbon and graphite, though designated by the same chemical symbol 'C', differ widely in their properties. Graphite is an allotrapic for m of carbon. They differ, inter alia, in their crystal structure. Item No. 67, CET, reads thus :- "Graphite electrodes and anodes of all sorts."
It is evident, therefore, that not all carbon electrodes and anodes are covered by this, item but only those made of graphite, which while being undoubtedly carbon, is nevertheless different from carbon in several respects including its crystalline structure. It is also seen from the record that subsequent imports of carbon rods by the appellants have been assessed under Item No. 68, CET. It is further seen that the Board had issued a tariff advice (CBEC Letter B-34/2/75/TRU dated 23-7-1975) to the effect that cat bon electrodes and anodes were distinguishable from graphite electrodes and anodes and fell under Item No. 68, CET. The Bombay Central Excise Collectorate had also issued a Trade Notice No. 15/84 dated 7-4-1984 to the effect that carbon rods for manufacture of dry batteries were classifiable under Item No. 68, GET.
6. Shri Sachar, for the department, contended that the appellants had not agitated before the lower authorities regarding non-disclosure of test reports and that the appellants could not agitate the matter now before the Tribunal. For the present purpose, it is not necessary to consider this objection for the reason that the onus on the department to show that the goods fell under Item No. 67 had not been discharged particularly considering that carbon and graphite are not identical and that the Board itself had considered that carbon rods would fall under Item No. 68, GET. Shri Sachar’s reliance on the Tribunal’s decision in the case of Talbros Automotive Components Ltd. v. Collector of Customs, Bombay, 1984 (15) ELT 193, in support of his contention that since the present goods, on the appellant’s own showing, contained a small percentage of graphite, they are not pure carbon rods and hence would not fall under Item No. 68,GET, is, in our opinion, misplaced. The cited case pertains to Item No. 22F, GET, which at the material time, covered “manufactures containing mineral fibres and yarn” which was interpreted by the Tribunal to cover a product containing 28.39% asbestos, rejecting the contention that the mineral fibre content should be over 50%. In the present case, however, Item No. 67, GET, does not contain any explanation as in the case of Item No. 22F. In any event, it is not the department’s case that the goods contained less than 50% carbon. What matters is how the goods are recognised whether as carbon or graphite.
7. In the light of the foregoing discussion, we hold that the carbon rods imported by the appellants were assessable to additional duty of customs equal to the excise duty leviable under Item No. 68, CET. We set aside the orders of the lower authorities and allow these appeals with consequential relief to the appellants.