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TMI Blog1987 (11) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... r Blocks was imported by the assessee as parts of heat exchangers. The goods were treated as articles of graphite and assessed to Customs duty under Heading No. 68.01/16(1) of the First Schedule to the Customs Tariff Act, 1975 (hereinafter referred to as the Schedule ). The assessee, after clearance of the goods, claimed reassessment under Heading No. 84.17 (1) as parts of heat exchangers and consequential refund. The Assistant Collector of Customs rejected the claim on the ground that Statutory Note 1(a) to Chapter 84 of the Schedule excluded articles falling under Chapter 68 from the purview of Chapter 84. In appeal, the Appellate Collector held that the aforesaid Note 1(a) covered only articles falling under Chapter 68 of the type of mill stones, grind stones, etc. and not appliances, machinery and parts. He further held that articles ejusdem generis with millstones and grindstones would alone be covered by the said exclusion clause in Note 1(a). The subject goods, being parts of heat exchangers, fell under Heading No. 84.17 (1) notwithstanding the fact that they might be articles made of graphite. On examination of the matter, the Central Government formed a tentative view th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any event, the goods would not fall under Heading No. 68.01/16. Since they were an integral part of Karbate Cooler Assembly, they would fall under Heading No. 84.17 (1) by virtue of Statutory Note 2(b) to Section XVI of the Tariff Schedule. 3. The proceedings were transferred to this Tribunal under Section 131B of the Customs Act, since they had remained unconcluded and is the deemed appeal No. 1573/81 before us. 4. Appeal No. 494/83 filed by the assessee against order in Appeal dated 18-12-1982 also concerns the classification of graphilor blocks. The claim for refund based on the aforesaid contentions was rejected by the Assistant Collector. In appeal, the Collector (Appeals) set aside the Assistant Collector s order on the ground that it was not a speaking order and that it did not give reasons why the Assistant Collector had disagreed with the Appellate Collector s classification of the goods under Chapter 84 (the order impugned in Appeal No. 1573/81) when that order had not yet been set aside by a competent authority. The Collector directed that the Assistant Collector should keep the matter pending disposal of the review proceedings which had been transferred to this Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor that the goods were comprised artificial graphite (electrographite) and phenolic resin (both artificially prepared) processed under severe conditions of temperature and pressure and the department had not controverted this contention. Only if the graphilor blocks had been made of natural graphite, there might have been a case for their classification under Heading No. 68.01/16 (1). 8. We have carefully considered the submissions of both sides. In the normal course, there should be no occasion for us to depart from the ratio of 5-Member Bench decision in the Saurashtra Chemicals case (supra). We find that the Schedule provides for separate classification of natural and artificial graphite. The former falls under Heading No. 25.01/32 (7) and the latter under Heading No. 38.01/19 (4). Section V in which Chapter 25 falls pertains to mineral products and Chapter 38 to miscellaneous chemical products. In the CCCN (Customs Co-operation Council Nomenclature) artificial graphite falls within Heading No. 38.01 and the explanatory notes thereon reads as follows :- 38.01 - ARTIFICIAL GRAPHITE; COLLOIDAL GRAPHITE, OTHER THAN SUSPENSIONS IN OIL. (1) Artificial graphite (electro-graph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite or of carbon mainly used for cutting into electrical brushes. The notes under Heading 38.01 indicate that blocks, plates, bars and similar semimanufactures of artificial graphite which also contain artificial resins or powders of base metals are not covered by that heading but fall under Heading 38.19 but artificial graphite, surface worked or surface finished, cut to special shapes, lathe worked, drilled, milled etc., or transformed into articles, if of a kind used for non-electrical purposes, usually fall under Heading 68.16. The examples given are filters, discs, bearings, moulds, acid-resistant bricks, etc. 9. From the literature on Graphilor Equipment available on the record, it is seen that a French firm Le Carbone - Lorraine had, in the early fifties, developed a new material called Graphilor for constructional materials in chemical plants. It is made from electrographite (which cannot be used as such because of its open porosity) in which the remaining pores are filled with a suitable impermanent (plastic resin) and the electrographite is made impermeable. This graphite is stated to be remarkably insensitive to thermal shock and offer extremely good resistance t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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