9911796707
TMI Blog1992 (2) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... s case is that the same is entitled for OGL benefit under Appendix 6, List 8, Part-1, Serial No. 686 of the Import Policy, 1988-91. On the basis of the statement of the appellant that they were dry batteries i.e. other than lead acid batteries, the goods were assessed under Heading 8507.80. The claim of the appellant for coverage under OGL Appendix 6, List 8, Part-1, Serial No. 686 was allowed on their execution of P.D. Test-cum-Licence Bond No. S37(5)-16/89A and sample was drawn and the same was sent for test in the Customs House Laboratory. 3. The Deputy Chief Chemist conducted the test and opined that the battery is based on the lead electrodes/plates embedded in a system of immobilized (gelled) electrolyte consisting of sulphuric acid and it is other than battery based on Manganese Dioxide and Nickel Cadmium that the same is enclosed in a plastic container. 4. In the meanwhile, the appellant submitted a catalogue referring to CSB, sealed lead calcium batteries of China Storage Batteries Ltd. which was also forwarded to Deputy Chief Chemist with a request to report whether the batteries having the composition as given in the test report could be regarded as lead acid storag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 112 of the Customs Act. 7. The appellant submitted a reply and contended that what was imported by them was dry batteries since the test report confirms that sulphuric acid was used as electrolyte and the same is not diluted and it is in the form of gel. It was also stated that the test report is not reliable and the same is incomplete. They contended in the reply that the goods in question are covered under OGL. A personal hearing was granted to the appellant and the impugned Order was passed. 8. Learned Advocate, Shri Sunil Chatterjee contended that the batteries in question are dry cell batteries falling under Serial No. 686 of Appendix 6, List 8, Part-1. It was his contention that the finding of the Adjudicating Officer that they are lead acid storage batteries falling under Serial No. 561 of Appendix 3 Part-A is not correct. It was, further, submitted that dry cell batteries included in Serial No. 686 of Appendix 6, List 8, Part-1 cannot be lead acid storage batteries. He pointed out that dry cell batteries and lead acid storage batteries are two distinct and different items. The test report relied on by the Adjudicating Authority does not indicate that the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd again. The chemical energy is transformed into electrical energy while the current is being drawn and in the reverse direction, while charging electrical energy is converted to chemical energy. In a cell there is an electrolyte (i.e. the medium) and two electrodes (i.e. cathode anode). The main types of accumulators are: (1) Lead acid accumulator, where the electrolyte is normally sulphuric acid and electrodes are lead plates. (2) Alkali accumulators, where the electrolyte is usually Potassium or Lithium Hydroxide and electrodes are either (a) Nickel and Iron or (b) Nickel and Cadmium. As per the claim of the appellant they have imported lead-calcium dry battery. For a rechargeable battery the medium will be either acid or alkali. As per chemical report for the present batteries it is sulphuric acid and out of two electrodes one is lead. The other electrode if it is calcium will face a peculiar situation since it will start releasing Hydrogen on contact with the moisture which will be available from the electrolyte and calcium in finally divided state will be flamable. Therefore, its presence as second electrode is doubtful. This point is being supported both by Deputy Chief C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appearance is that of dry cell though in fact it is lead acid storage battery. It only means that some of the secondary storage batteries had resemblance of primary dry cell and outwardly appeared to be so. For these reasons, he stated that the appeal may be dismissed. 12. By way of rejoinder, the learned Advocate, Shri Sunil Chatterjee contended that in the absence of a definition of dry cell battery in the policy the same should be understood as is understood in the common Trade Parlance. In this connection, he relied on the decision of the Supreme Court reported in 1988 (37) E.L.T. 474 (SC) = 1988 (18) ECR 373. Alternatively, he also submitted that the penalties of Rs. 1,50,000/- is on the excessive side. 13. We have considered the submissions of both sides. The point that arises for our determination is whether the batteries in question are covered under Serial No. 686 of Appendix 6, List 8, Part-1 or they are covered under Serial No. 561 of Appen. 6, List 8, Part-1 of the Import Policy, 1988-91. 14. In this connection, the test report obtained by the Department is material one. The appellant had declared these batteries as dry cell batteries. Serial No. 686 of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies, secondary (lead acid). He, therefore, pointed out that this battery works on thixtotropic principle. This principle is to the effect that certain colloidal gels will be liquefied when agitated and return to gel form when at rest. It was, therefore, contended that in the present case the gelled cell consisted of sulphuric acid which remains in gelled form when at rest comes to liquefied form when current is being drawn. 17. In the instant case, when there is no definition given in the policy, in a text statute the words must be interpreted in the trade parlance. These are the principles laid down by the Supreme Court in a decision reported in 1988 (37) E.L.T. 480 (SC) = 1989 (20) ECR 273 (SC). In that decision, at page 279, para 12, their Lordships held as follows :- It is a well-settled principle of construction, as mentioned before, that where the word has a scientific or technical meaning and also an ordinary meaning according to common parlance, it is in the latter sense that in a taxing statute the word, must be held to have been used, unless contrary intention is clearly expressed by the legislature. This principle is well settled by a long line of decisions of Cana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is authority of the Indian Standard Institute s publication Glossary of Terms used in Paper Trade and Industry - IS : 4661. Therefore, understood in the accepted notion of construing entries of fiscal Statute not from a technical or scientific point of view but from the point of view of the people in the trade dealing with that particular type of goods and having regard to the evidence of the Indian Standard Institute and in the absence of any other evidence to the contrary, the Tribunal was justified in holding that on the basis of the definition of paper as it was in the year 1976 carbon paper would come within Item 17(2) of the Tariff Items." Applying the above principle to the facts of this case, it is seen that these batteries are filled with gelled sulphuric acid as electrolyte. That being so, the mere fact that when current passes the sulphuric acid comes into liquid form is no ground to conclude that the batteries are not dry cell batteries. In the common trade parlance as well as in the popular sense which is understood by the trade, the same should be treated as dry battery cell. In fact, the learned Adjudicating Authority has also accepted this position in his Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turer catalogue shows that the electrodes of the subject batteries are lead and calcium. This was not taken into consideration in the Show Cause Notice. But the argument of the learned J.D.R. is that there is nothing to show that this catalogue pertains to the batteries in question. However, the catalogue was produced by the appellant and there is nothing in the Order to show that this catalogue does not pertain to the subject batteries. In the Dictionary of McGraw-Hill lead acid battery is defined as one in which the electrodes are gelled on lead containing lead oxide and electrolyte is diluted sulphuric acid. The test report does not clearly show that the batteries in question consist of lead electrodes. The sulphuric acid is in the gelled form. That being so, it is highly doubtful whether the batteyies in question are lead acid batteries. The gist of the test report is mentioned in the Show Cause Notice. The perusal of the same also does not give any report to conclude that the electrodes in this case are made of lead or lead oxide. It only stated as follows :- The test report when read with the above information as given in the literature reveals that such batteries fall und ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
