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TMI Blog1994 (8) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... classification under Heading 2504.90 was rejected on the basis that the goods have undergone processes in excess of the ones mentioned in Note I of Chapter 25. The next point of dispute raised by the deptt. was with regard to the valuation of the goods. The value was loaded by department in accordance with an invoice from M/s. Le Carbone Lorraine, France, a manufacturer of graphite, bearing invoice No. 809981, dated 12-7-1991. The importer has contended that they had imported a consignment of Japanese origin from M/s. KAZ International (P) Ltd., Singapore under the supplier s invoice No. KSZ/92/909, dated 2-4-1992 against contract dated 10-3-1992 between the appellants and the foreign supplier. They disputed the reliance by department on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mical Examiner s report which states The sample is in the form of a cut piece of black coloured block. It is graphite having a specific gravity of 2.03 and purity 91.3%. NOTE : As per HSN explanatory note under Heading 25.04 natural GRAPHITE is stated to have a specific gravity varying between 1.9 and 2.6, the carbon content of the purest grade ranges from 90 to 96% whereas the specific gravity of Artificial graphite is stated to be about 1.5 to 1.6 under Heading 38.01". The ld. Collector on the point of valuation has held that the importer had not submitted the invoice of the manufacturer. The invoice dated 2-4-1992 submitted by them is from M/s. Kaz International and has noted that nothing prevented them to produce the manufacturer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the goods are in natural state. He submitted that Chapter 28 would apply only if the goods are artificial graphite and Note 1 of Chapter 38 clearly excludes natural graphite. He submitted that there is no process of purification carried on after mining and hence the classification would clearly be under Chapter 35. He also draws support from the Chemical Examiner s report. Further arguing on the valuation point, the ld. Advocate submitted that the invoice dated 12th July 1991 relied by the department is of a French origin and not of comparable goods. He submitted that the three bills of entries relied by the appellants should have been accepted. He submitted that their goods are Japanese origin and the rate of contract with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Central Excise - 1992 (60) E.L.T. 311 3. Sawhney Export House (P) Ltd. v. Collector of Customs - 1992 (60) E.L.T. 327 4. Kamani Oil Industries v. Union Of India - 1992 (60) E.L.T. 432 5. Sandip Agarwal v. Collector of Customs - 1992 (62) E.L.T. 528 4. Ld. SDR submitted that the product is a preparation of graphite and that it is not a natural graphite. He submitted that if it is a block then it goes out of Chapter 25. He submitted that once the blocks are cut into small blocks then they will no longer be in crude form and hence they have to be excluded from Chapter 25 in terms of Note 1. As regards the valuation, the ld. SDR submitted that the importer did not file the manufacturers invoice despite requests by department and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In this case the Chemical Examiner s report clearly states that the product is in the form of a cut piece black coloured block and that it is a graphite. The Chemical Examiner has also noted from HSN Explanatory Note about the specific gravity varying in natural and artificial graphite. In view of the goods being natural graphite, which is not being disputed by the department, the question of its being eliminated from Chapter 25 does not arise. Further Chapter 38 deals with Miscellaneous Chemical Products and also those which do not have a separate chemically defined elements or compounds with the exception of Artificial graphite which falls under Heading No. 38.01. Therefore, the Heading 38.01 deals only with Artificial graphite. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... French Invoice works out to Rs. 128/- per kg. He has also noted the importer s refusal to furnish the invoice despite reminders being given by the department. The ld. Advocate has submitted that the department has not produced evidence to show that the appellants had mis-declared their value and that, to accept an invoice of France, which is of a different country of origin and of a different date and quantity is not sustainable. The ld. Advocate has pointed out to the definition of identical goods and similar goods appearing in Rule 2 of Customs Valuation Rules, 1963 to buttress his point that the transaction value as per Rules 4, 5 6 be accepted in their case. He has also pointed out that the parties are not related and the transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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