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G. Sankaran, Sr. V.P.

1. M/s Lakhanpal National Limited (the appellants) are engaged in the manufacture of Leclanche cells known as dry cell batteries. For this purpose they imported from time to time carbon rods. Thirteen such consignments were imported by the appellants which were assessed to customs duty under heading No. 85.18/27(1) of the First Schedule to the Customs Tariff Act, 1975 and to additional duty of customs equivalent to the excise duty leviable under item No. 67 of the First Schedule to the Central Excises and Salt Act, 1944 (the said Schedule is hereinafter referred to as "the CET"). The appellants cleared the goods on payment of duty so assessed but filed claims for refund of additional duty of customs on the ground that the imported carbon rods fell under item No. 68 and not under item No. 67, CET. The Assistant Collector rejected these claims, some of them as unsubstantiated and the others on the ground that battery carbons imported by dry cell battery manufacturers had been tested at the National Test House, Calcutta, by using x-ray diffraction method and had been identified to be made of graphite. On this basis, the Assistant Collector held that the assessments in these cases of the goods as graphite electrodes was in order. In appeal Assistant Collector's orders were upheld by the Collector (Appeals), who observed in his order (presently impugned before the Tribunal) that the appellants had not substantiated with evidence their claims that the goods were carbon electrodes. He held that graphite being an allotropic form of carbon and the goods having been identified as made of graphite, the assessments were in order.