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TMI Blog1983 (11) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... s imported by the appellants and described in the Order-in-Appeal as Beater addition asbestos jointing . These were classified by the Customs authorities under Heading No. 68.01/16 of the Customs Tariff Schedule, at 100% basic duty plus 20% auxiliary duty; and also charged to countervailing duty under Item 22F of the Central Excise Tariff Schedule at 15%. The appellants have contended that the basic Customs duty should have been levied at 60% and 15% auxiliary, namely the rates corresponding to Item 87 of the Indian Customs Tariff which was in force prior to the coming into force of the Customs Tariff Act, 1975. They have not specified any particular item of the new tariff under which they claim classification for the levy of basic duty and the rates of 60% + 15%. 3. So far as countervailing duty is concerned, it is the contention of the appellants that their goods did not conform to the description of Item 22F of the Central Excise Tariff Schedule as in force at the relevant time and therefore should not have been charged to any countervailing duty. (In the course of the hearing it was observed that the imports had been effected after the introduction of residuary Item 68 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gaur advanced the following arguments :- (i) Item 58(1) of the First Schedule to the Indian Tariff Act, 1934, covered asbestos manufactures, not otherwise specified . They were importing the same goods when this Schedule was in force. Their goods were tested at that time also. It was found on each occasion that the percentage of asbestos in the goods was below 50%. Accordingly, their goods were not classified under Item 58(1) but under the residuary Item 87, covering All other articles, not otherwise specified . On the same analogy, the goods could not be considered as asbestos manufactures for the purpose of countervailing duty; (ii) Item 22F of the Central Excise Tariff Schedule was subsequently amended, by the Finance (No. 2) Act, 1980. The effect of the amendment was that the words manufactures containing mineral fibres and yarn appearing in clause (iv) of the Explanation were replaced by other manufactures in which mineral fibres or yarn or both predominate or predominates in weight . In a note explaining the provision of the Bill, it was mentioned that this amendment was of a clarificatory nature . It should, therefore, be considered that the condition as contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asbestos jointings or Beater addition process asbestos . We also enquired whether the reports on the tests carried out by the Customs authorities at the time of importation were available. Shri Gaur replied that the detailed reports were not made available to them. However, the results of the tests had been endorsed on the relative Bills of Entry and were therefore known to them. They had also taken down copies of some of these endorsements. We were shown copies. In one case the endorsement read as follows :- Samples is in the form of sheet. It is composed of asbestos, rubbery matter and oxides of iron and magnesium. The percentage of asbestos is less than 50% by weight. Approximate % of asbestos equals 37.0% . In another case the endorsement was as follows :- Sample is in the form of a sheet. It is mainly composed of asbestos, wood pulp, colouring matter, inorganic filler and rubbery matter. Approximate percentage of asbestos 28.3% . In another case the percentage of asbestos was shown as 39%. The basic argument of Shri Gaur was that unless the content of asbestos was over 50%, the goods could not be deemed to be a manufacture of asbestos or manufacture of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (reported in ECR C476 S.C. = 1983 E.L.T. 1566) that once an article is classified and put under a distinct entry, the basis of the classification is not open to question . That principle applies fully in the present case. 11. Shri Gaur had referred to the hardship which might be caused in extreme cases where the percentage of asbestos or mineral fibre was very low, say 1%. It cannot be said that the present is one such extreme case, for a number of reasons. 12. Firstly, the percentage of asbestos in these cases ranges from 28.3% to 39%. This is certainly a substantial percentage, and there is no analogy to a case where the percentage of asbestos is negligible. 13. Secondly, it is seen, as stated by the appellants themselves in their appeal (and as confirmed by the test reports) that the goods are composed of a mixture of asbestos, rubber, inorganic materials, chemicals and fillers. The percentage of each of these ingredients, particularly the fillers, is not available. The term filler is normally used for a material used to increase the bulk of an article without having any active role of its own. When evaluating the importance of a constituent in the product, the fill ..... X X X X Extracts X X X X X X X X Extracts X X X X
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