Full Judgment
2. Shri V. Lakshmi Kumaran, the learned counsel for the respondents herein has filed a Miscellaneous Application for taking on record additional evidence which consists of two affidavits and a letter. The argument taken is that if the goods under dispute are made of artificial graphite, they would fall under Chapter 84 and not under Chapter 68 in view of Tribunal's judgment in Albright Morarji and Pandit Ltd. and Anr. v. Collector of Customs, Bombay and Anr. [1988 (33) ELT 488]. The ground on which additional evidence is sought to be introduced is as under :- "This aspect of the matter as to whether the items were of Natural Graphite or Artificial Graphite and their vital relevance on the question of classification was not understood completely by either side and its importance became relevant only in terms of the above referred judgment of the Hon'ble Tribunal." 3. We have heard Shri Lakshmi Kumaran and Shri Jayanarayanan Nair, the learned Departmental Representative. The latter has opposed the application for taking on record the additional evidence.
4. We have considered the rival submissions on the matter. The additional evidence consists of two affidavits (both of which are dated 20th October, 1990) and a letter from the suppliers dated 24th October, 1990. While the affidavits clarify that the carbon rings cannot be manufactured out of natural graphite, but out of artificial graphite, the suppliers' letter with which is enclosed a certificate states that the goods in question supplied in March, 1984 were made of artificial graphite. No technical literature of the manufacturers of the goods has been submitted before us and reliance is sought to be placed on documents which are not of contemporaneous existence. The only reference to a technical book is to the Chemical Dictionary Gessner G.Hawley (10th edition) with regard to the entry relating to the graphite; this is of no help because it does not throw any light on the nature of goods imported. We do not think that in a case of this type it would be proper for us to accept this evidence. We, therefore, reject the Miscellaneous Application.
5. We, therefore, proceed to decide the matter on the basis of the existing material on record. The point raised in the department's appeal is that Note l(a) to Chapter 84 would exclude articles falling in Chapter 68 from the purview of Chapter 84 - a point which has not been properly considered in the impugned order. Section note l(n) to which reference has been made in the order being about interchangeable tools is not relevant. The learned JDR had invited our attention to the decision of the Tribunal in the case of Saurashtra Chemicals v. CCE [1986 (23) ELT 283] in which the classification of even fully furnished machinery parts made of carbon as not meriting classification under heading 84.65 was decided. He urged that since this decision was conclusive on the question, it should be followed and rings made of graphite, which too is a form of carbon, should be classified under Heading 68.01/16. Shri Lakshmi Kumaran's argument was that once the additional evidence sought to be brought on record through his Miscellaneous Application was taken on record, the rings being made of artificial graphite, their correct classification would be under Chapter 84 in view of the judgment of the Tribunal in Albright Morarji's case (Supra).
6. Having heard both sides and having given our earnest consideration to the matter, we think that the matter stands settled conclusively by the larger bench decision in Saurashtra Chemicals case (Supra) and the correct classification of the graphite wearing rings should be under Heading 68.01/16 of the Customs Tariff Act, 1975. Consequently the order of the Collector of Customs (Appeals) is set aside and the appeal is allowed.