ORDER
N.K. Bajpai, Member (T)
1. This is an appeal of the Department against the orders of the Collector of Customs (Appeals), Bombay, holding that the goods imported by the respondents herein, were Refractory Bricks and were classifiable under Heading 69.01/02 of the Customs Tariff, but were not entitled to the exemption under Notification 242/76-Cus., dated 2-8-1976, because they had failed to establish that the goods were of special shape or quality for use as component parts of industrial furnace. The Department contends that on the basis of the description of the goods as “fused Silica Refractory”, they cannot be considered to be refractory bricks so as to be classified under Heading 69.01/02 and their classification under Heading 68.01/16 was correctly made and the claim for refund was also correctly rejected on the same count. The Collector (Appeals) who had partly allowed the appeal accepting the classification under Heading 69.01/02 was in error. It has also been submitted in the appeal that as per suppliers’ literature, which was submitted by the respondents, the goods were described as “Castable Refractory – a blended mixture of fused silica aggregate with a high purity hydraulic binder.” It has been further submitted that what has been imported is in the form of powder/granules etc., and not in the shape of bricks as held by Collector (Appeals).
2. On receipt of the notice of hearing, the respondents submitted a letter No. COMP/N/836/84/225 dated 1st/5th April, 1991 stating that they would not be able to appear for hearing and requested that the appeal may be decided on merits. They also submitted photocopy of Bill of Entry Cash No. HD1470 dated 8-1-1983 in support of their claim that fused silica refractory, which was imported by them through Bombay port in January, 1983 was assessed under Heading 69.01/02 and given the benefit of exemption under Notification 242/76-Cus., dated 2-8-1976.
3. Arguing for the appellant – Collector, Shri J.N. Nair, the learned JDR, submitted that the description of the goods in Invoice No. 16893 dated 27-11-1984 was “Fused Silica Refractory HW 2272 SC No. B4301 x 72” and the goods were described in the Bill of Entry as “Fused Silica Refractory”. Shri Nair submitted that the documents do not bear out the claim of the respondents that they had imported refractory bricks and in view of this conclusive evidence, Collector (Appeals) was in error in stating in his order that the goods were refractory bricks classifiable under Heading 69.01/02. He also submitted a copy of the technical literature which the respondents had submitted to the Assistant Collector, in which it is specifically mentioned that this Castable Refractory is a blended mixture of carefully sized/fused silica aggregate with a high purity binder. The literature also indicates that these goods are shipped in 100 lbs. sacks, which would indicate that they were imported in powder/granule form.
4. We have carefully considered the appeal, the written submissions of the respondents and the arguments of the learned Departmental Representative at the hearing. We observe that the learned Departmental Representative’s claim is duly supported by the description of the goods in the invoice and in the supplier’s literature, a photocopy of which was also submitted at the hearing. Since the imported goods were not refractory bricks, their classification under Heading No. 69.01/02 ordered by Collector (Appeals) was clearly in error. We, therefore, set aside the order and allow the Department’s appeal.
