ORDER
1. The dispute involved in this case is whether super finishing stones imported by the appellants should be assessed under sub-heading (1) of Heading 68.01/16 of the Customs Tariff Act, 1975, as done by the Department, or under sub-heading (2) of the same heading, as requested by the appellants.
2. The case was heard on the 21st and 24th December, 1982. Shri K. Kumar appeared for the appellants and Shri M. Chatterjee for the Department.
3. Shri K.Kumar’s arguments in favour of the appellants’claim were three-fold :
(1) The Appellate Collector had given a distorted interpretation of the suppliers’ certificate and said that super finishing stones were no different from hones and, therefore, excluded from sub-heading (2). Super finishing stones were, in fact, quite different from hones. Hones were made of coarser abrasive particles having grit size upto 600 while super finishing stones were made of very fine particles of grit si7e 800-1200. While hones were used to remove the unwanted stock from the article subjected to grinding, super finishing stones were used to smoothen and polish the surface. The two were thus quite different functionally as well as in construction and if the suppliers’certificate was read as a whole, their case would become clear enough.
(2) Only hand hones were excluded from sub-heading (2). Even if it was assumed, as stated by the Appellate Collector, that there was no difference between super finishing stones and hones, since super finishing stones imported by them were machine-operated, they were not excluded from sub-heading (2).
(3) If it was the Department’s case that all types of hones were excluded from sub-heading (2), then hones would go out of Heading 68 altogether since, having been specified in sub-heading (2), though for the purpose of exclusion, hones could not be deemed to be included in sub-heading (1) which covered only the goods “not elsewhere specified”.
4. Shri Kumar, however, hastened to add that the appellants were not pressing for their plea at (3) above and that their prayer was for sanction of their refund claim as originally filed with the Assistant Collector, namely, that the goods should be re-assessed under sub-heading (2) and the difference in duty amounting to Fs. 18,083.80 refunded to them.
5. Shri M. Chatterjee stated on behalf of the Department that the appellants had not produced any catalogue or technical literature of the foreign supplier and that the supplier’s certificate was no substitute for catalogue and technical literature. In the Bill of Entry the appellants themselves had claimed assessment under sub-heading (1). The affidavits of their own engineer-employees could not be accepted. Finally, Shri Chatterjee produced an illustrated catalogue published M/s Delapans, a foreign manufacturer of grinding stones, which stated that graphite impregnated honing stones could be used for super finishing jobs on various types of metals. The catalogue was shown to the appellants during the hearing.
6. We have given our earnest consideration to the matter. There is no dispute that the goods imported in this case were grinding stones. The dispute really is whether they should be classified under sub-heading (I) or sub-heading (2) of heading 68.01/16. For the sake of convenience, we reproduce below the two relevant sub-headings :-
“(1) Not elsewhere specified.
(2) Grinding stones, grinding wheels and the like, of natural stone, of agglomerated natural or artificial abrasives, and segments or other finished parts of such stones and wheels but excluding hand polishing stones, whetstones, oil stones, and hones.”
7. We have carefully considered the construction of the exclusion clause “but excluding hand polishing stones, whetstones, oil stones and hones” occurring in sub-heading (2) above. We find that the word “hand” qualifies only polishing stones and not the remaining three types of stones mentioned in this clause. Accordingly, we hold that the appellants’ contention that only hand hones are excluded from sub-heading (2) is not correct; since “hones” mentioned in the exclusion clause are unqualified, all types of hones, whether hand-operated or machine-operated, stand excluded from sub-heading (2).
8. We note that the appellants’ claim which was filed with the Assistant Collector and which was later considered by the Appellate Collector in appeal related to refund of Rs. 18,083.80, being,the difference in duty charged under sub-heading (1) and that chargeable under sub-heading (2). The appellants’ argument now that if all types of hones are excluded from sub-heading (2), then hones would stand excluded from Heading 68, or for that matter from the Customs Tariff, altogether and if the Department considered their super finishing stones as no different from hones, then the goods imported by them would not be liable to any duty at all and, therefore, the entire duty collected from them should be refunded, is a fresh claim made for the first time before this Tribunal. We cannot, therefore, go into this claim. If at all the appellants are serious in putting forth this claim, they should have to agitate it before the original authority who would consider it from all aspects including that of time bar for filing refund claims under Section 27 of the Customs Act, 1962, if applicable. In any case, we find that though the appellants have raised this argument before us, they have not pressed for it. They have stated during the course of the hearing that they are pressing for their original claim only as filed before the Assistant Collector. This leaves us to consider their main argument that since the super finishing stones imported by them were different from hones in construction and functioning, they remain classified under subheading (2).
9. We observe that the appellants have failed to furnish acceptable documentary evidence to substantiate their contention that super finishing stones imported by them were different from hones. They have not produced the suppliers’ catalogue or technical literature in support of their contention. The Department is justified in saying that after the goods have gone out of Customs charge, the catalogue and technical literature of the foreign suppliers become indispensable evidence for ascertaining the true nature of the suppliers’ products and we cannot really find fault with the Department if, considering the high revenue stakes involved, the Department is reluctant to place reliance solely on ad hoc certificates obtained by the appellants from the suppliers, much less on the affidavits of the appellants’ own employees. We find further that in: the copy of the Bill of Entry furnished to us by the appellants, the description of the goods is not legible. It can, however, be seen distinctly that the appellants themselves declared the tariff classification of these goods under sub-heading (1) of Heading 68.01/16. During, the hearing, we asked for the import invoice in order to know the description of the goods in the import documents. We were shown an invoice in the appellants’ file which they stated was the import invoice and which described the goods as super finishing stones. We then asked the appellants to show that hones were made of particles of no more than 600 grit size while super finishing stones were made of particles 800-1200 grit size, as contended by them. They invited our attention to photostat copies of certain extracts from Kent’s Hand Book on Metal Cutting Processes enclosed with their appeal. We have gone through these extracts but we find no such distinction of grit size between hones and super finishing stones as contended by the appellants. Finally, we asked the appellants to show that the super finishing stones imported by them had grit size above 600. The appellants drew our attention to certain code words appearing in the invoice like “EKW” and “SCC” followed by the figure 800 in the invoice. They claimed that the code words referred, to grit size. Here again, they had nothing to show by way of evidence that these code words represented the grit size. On the other hand, the Department produced the printed and illustrated catalogue of M/s DELAPANA which listed various types of grinding stones under the heading “Honing stones” and one of the types so listed was graphite impregnated honing stones which performed the functions of super finishing on various types of metals. In view of the appellants’ failure to substantiate their case with acceptable documentary evidence and in view of the Department having proved that super finishing stones could also be a category of honing stones, we are hardly in a position to find fault with the findings of the Appellate Authority.
10. Accordingly, we reject the appeal.
