Commissioner Of Cus. vs Indian Aluminium Company Ltd. on 26 September, 2000

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Customs, Excise and Gold Tribunal – Mumbai
Commissioner Of Cus. vs Indian Aluminium Company Ltd. on 26 September, 2000
Equivalent citations: 2001 (127) ELT 251 Tri Mumbai


Gowri Shankar, Member (T)

1. The respondent to this appeal, filed a claim for refund of the Customs duty paid on coal tar pitch imported by it. The basis for the claim was that the goods were classifiable under heading 2708.11 of the tariff and not under heading 2708.19 under which had been assessed. The Assistant Collector held the classification decided by the department to be correct and dismissed the claim for refund. On appeal from this order, the Collector (Appeals) held that the goods were shown to be classifiable under heading 2708.11, and ordered payment of refund. This is being challenged by the department’s appeal.

2. Heading 2708 is for pitch and pitch coke, obtained from coal tar or from other mineral tars. Sub-heading 11 is for pitch obtained by blending with creosote oil or other coal tar distillates. Sub-heading 19 is for other. Therefore, for the goods to be classified under sub-heading 11, they must have been “obtained” by blending with creosote oil or other coal tar distillates.

3. The Tribunal in its decision in Steel Authority of India Ltd. v. CCE 1993 (67) E.L.T. 868 has reproduced at page 874 the process of distillation of coke. This shows that both pitch and creosote oil are products of the distillation of coal. The reference to the term “obtained” in sub-heading 11 is therefore not clear. Pitch can not be “obtained” by blending it with creosote oil or other coal tar distillates. It is however equally clear that pitch may be blended with creosote oil to render it suitable for a particular application. This is what the Encyclopedia of Chemical Technology of Kirth Othmer says. In this situation, it is difficult to see how testing of the product would show whether it has been blended with creosote oil or other coal tar distillates. All pitches obtained from coal, it would appear, would contain some portion; or track of creosote, that being one of the products of the fractional distillation. This doubtless explains that the test report of both from the Indian Institute of Technology and Steel Authority of India Limited on the product imported by the appellant saying that the coke may, or may not have been blended with creosote oil.

4. In these circumstances, we are of the view that the Collector (Appeals) has rightly relied upon the certificate furnished by the manufacturer of the goods. This certificate of M/s. Korea Steel Chemical Co. Ltd., says that the coal tar pitch which is supplied to “many famous aluminium company” in which it included Intalco Aluminium Corporation (evidently the respondent to this appeal) is “obtained by blending with other coal tar distillates”. The certificate therefore supports the contention of the respondent that it is the blended coal tar pitch which is used as a bents for carbon electrodes used in the arc furnace and for which purposes it was imported by the respondent. The ground in the appeal that the certificate is issued by a person other than the supplier who was a trader M/s. Daewoo Corporation is irrelevant and unacceptable. It is the manufacturer and not the supplier, when the two are different who is competent to say how the goods were manufactured. The appeal itself accepts that the respondent is named in the certificate although there is a spelling error in the name. Such an error is rightly ignored by the Collector (Appeals).

5. There is therefore no reason why this certificate should not be accepted. This certificate, as we have noted, clearly supports the classification as claimed by the respondent.

We therefore see no reason to interfere with and dismiss the appeal.

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