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4. Shri S. Chakraborty, the ld. JDR appearing for the Department, pointed out that the test report of the Customs House Laboratory, in this case, is very clear stating that the goods imported is inorganic chemical calcium tungstate in the form of white powder. He, further, pointed out that under the Customs Tariff, there are distinct product groups under Sections V & VI where Section V relates to mineral products including ores, slag and ash and Section VI relates to the products of the Chemical or Allied Industries. According to the Test Report, the goods is stated to be inorganic chemical CaWO4 which means it is a separate chemically defined compound. Chapter 28 of CTA in Chapter Note l(a) covers separate chemical elements and separate chemically defined compounds, whether or not containing impurities. The reliance placed on the Supreme Court decision in the case of MMTC (supra) by the appellants will be of no avail, according to the Ld. DR, because that decision was given in the context of the Indian Customs Tariff and not Customs Tariff Act, 1975, with which we are presently concerned, which has a self-contained section and chapter notes and Rules of Interpretation and classification under it is to be determined within the parameters of these notes and the tariff heading. For the same reason, the Ld. DR pointed out that there is no need to go into the dictionary meaning of the term 'Ore' or 'Mineral' so long as the scope of the tariff entry can be decided within the coverage of the section and chapter notes and the tariff heading, itself. The opinion given by the University of Pune regarding the crystallographic structure is apparently subsequent to clearance of the goods and does not, therefore, have much evidentiary value. The goods had been cleared in October, 1983. In reply, the Ld. Counsel pointed out that even if the product is held to be calcium tungstate, it is nothing but scheelite as indicated by the supplier's clarification in their letter dated 14-5-1987, and even going by the Chapter Note 2 of Chapter 26, the goods will still fall only under that chapter. Therefore, there is no cause for classifying the goods under Chapter 28 CTA according to the appellants. The Ld. Counsel pointed out that the Bombay High Court decision in the case of Straw Products Ltd. v. UOI reported in 1990 (47) E.L.T. 527 also supported the appellants wherein the High Court held that Manganese Ore containing 82.84% manganese dioxide and needing subjection to several processes prior to use in dry cell batteries is classifiable as naturally occurring ore and that classification by the Department on the basis of material being in powder form is erroneous, and the Court held the goods as classifiable under Item 26 of the Indian Tariff Act, 1934 and not under Item 28 thereof. Court held that the material being in powder form will not be a ground for considering it to be not ore in natural form. The Ld. Counsel urged that the fact Tariff has changed will make no difference because the test laid down for considering the material as ore by the Court is still valid.

9. From the above, it is evident that the scheelite concentrate of 72% WO3 grade is itself marketable and is capable of being utilised by the user industries. The molybdenum-free high purity calcium tungstate, a fine chemically precipitated artificial scheelite of 77% WO3 to 78% WO3 grade, is a further refinement, and according to the suppliers themselves, meant for more discriminating consumers. It is, further, seen from the literature titled 'Operations at King Island Scheelite' that the calcium tungstate Artificial Scheelite is obtained by a process of chemical precipitation. This is also supported by the diagram of the products and process supplied by the appellants wherein natural scheelite is prepared and ready for marketing after the tabling process whereas synthetic scheelite undergoes further processes of digestion, filtering and is obtained by chemical precipitation. Further, according to the literature 'Opertions at King Island Scheelite', during the processing streams containing minus 74 micron material are fed to two thickeners, are pumped to flotation feed conditioners where reagents are added to increase pulp pH, disperse silicious gangue, depress calcite, collect scheelite and the conditioned pulp is then passed to flotation cells to obtain a low grade concentrate suitable for feed to the artificial scheelite plant. All this is in expansion of the what is stated in the same literature under heading 'General Milling Operations' that the supplier has a complex to convert the product from flotation section to a molybdenum- free high purity calcium tungstate or 'artificial scheelite'. It is in this context, therefore, with reference to the goods imported, which is described as artificial scheelite by the suppliers, that we have to apply the Section Note 2 to Chapter 26 which says that the Headings 26.01 to 26.17 do not include minerals which have been subjected to processes not normal to the metallurgical industry. It is seen that the product from the suppliers having 72% WO3 grade and described as coarse plus 74 micron gravity concentrate has already undergone the processes normal to the metallurgical industry such as crushing, grinding, flotation, tabling. It is marketable and can be utilised by the user industries. The product artifical or synthetic scheelite of a higher WO3 value is obtained by further processes and is chemically precipitated, which is something in addition to the normal processes, in order to make it acceptable to more discriminating consumers. In this context it will also be relevant to refer to the Test Report of the Customs House Chemical Examiner saying that the sample is an inorganic chemical calcium tungstate in powder form. Therefore, such a product will fall outside the scope of Chapter 26. In the MMTC case decided by the Supreme Court, relied on by the appellants, the Supreme Court had observed that basic operations necessary to produce usable Ore concentration will not take the product out of classification as 'ore'. In the same judgment, the Hon'ble Supreme Court had noted that in that case the 'ore' was never subjected to any process of roasting or treatment with chemicals to remove impurities, whereas, here, we have seen that the artificial scheelite imported according to the suppliers' literature is a molybdenum-free high purity calcium tungstate or a fine chemically precipitated artificial scheelite of approximately 77% WO3 to 78% WO3 grade. The same literature, further, shows that from the mine, tungsten is sold as a concentrate either wolframite or scheelite and the grade of concentrate has to be higher than 65% WO3. The product, which the suppliers describe as coarse gravity concentrate itself, has 72% WO3 grade and it is this product which they market as concentrate. In view of the above finding, it has to be held that artificial scheelite imported will fall outside the scope of Chapter 26 in view of Chapter Note 2, because it has been found that the product has been subjected to further processes of digestion, filtering and is obtained by chemical precipitation which is a process further to the normal processes of making the ore marketable or suitable for industrial users. Since classification has to be within the terms of the chapter notes and since the criterion therein is not whether the goods is in powder form or granual form, the submissions made in this behalf by the appellants that the mere fact that the product is in powder form should not be a ground for excluding the goods from Chapter 26, do not have much force. The Supreme Court judgment in the case of MMTC (supra) under the old Tariff Item 26 of ICT which did not have any chapter notes and was rendered in that context. The expert opinion by the Head of the Department of Physics, University of Pune dated 20-6-1986 has sought to compare natural scheelite and Australian Synthetic Scheelite alongwith precipitated calcium tungstate and has given his opinion that natural scheelite and Australian Synthetic Scheelite have identical structure. But the opinion of the Head of the Department was given without reference to the suppliers' own literature regarding the processes and products which has been extracted and referred to above from which it is evident that what is imported is chemically precipitated artificial scheelite. So also, Shri T.R.S. Krishnan, Ex-Dy. Chief Chemist had given his opinion without having the benefit of perusal of the suppliers' literature and had given his opinion that the product imported is scheelite ore from which associated impurities are removed by usual ore processing method. In the result, it is held that the lower authorities were right in not classifying whether or not containing impurity as the goods are separate chemically defined compound. It had been contended before us that classification of the item under Heading 28.51 as other organic compounds is not an appropriate that being residuary item. The Ld. D.R., before us, urged that the goods would be appropriately classifiable under Heading 2841.80 as tungstate. We find that in the Assistant Collector's order in assessment, no heading or sub-heading under Chapter 28 has been indicated. It is only in the Collector (Appeals') order that sub-heading 28.51 has been mentioned as the tariff heading under which the lower authorities had assessed the goods. From the perusal of these two tariff headings, it appears that the tariff rate of duty on both the headings appears to be the same. However, I do not feel called upon to pronounce on this issue as the appellants have not made submissions as between these two entries under Chapter 28 since their case is that Chapter 28 is not applicable at all to the goods imported, which it is found, is not sustainable. In the result, I do not see any reason to interfere with the order passed by the lower authorities. The appeal is rejected.

(1) Nature and composition; (2) Percentage of WC3; (3) Whether Tungston ore. The Chief Exanminer who submitted his report has not answered any of the questions posed to him but instead has answered that "the sample is an inorganic chemical calcium tungstate ore in the form of white powder". The main question that should have been answered by Chemical Examiner with regard to questions posed to him is not answered at all by him. Therefore, the appellants relying on the various materials produced by them has got to be looked into. In the first instance, it has to be examined whether the product is Tungsten Ore and whether it is traded in the market as an Ore. There is no difficulty to come to the conclusion that the product has been imported as Tungsten Ore, as Bill of Entry describes it so. The onus of classification is on the department but they have not produced any evidence of any sort to reject the contention that the product is not Ore at all and that it is chemically defined compound. The various materials produced by the appellant in support of their contention was not before the lower authorities but the Counsel had submitted that these materials should be looked into although produced for the first time. In support of his contention, he had also relied upon the ruling given by this Tribunal in the case of Power Cable Industries, Bombay v. Collector of Central Excise, Bombay reported in 1984 (16) E.L.T. 285 (Tribunal). We have accepted the contention of the appellants to consider the matter on merits and have taken up the matter for so consideration on merits. There were certain materials before the lower authorities i.e. the analysis certificate produced by the importer which describes the goods as 'Artificial Scheelite' describing the product as WO3 with percentage as 78.6% and it certified that crystallographic structure of Spanish natural Scheelite and king island scheelite is similar. The letter of Shri P.S. Damle, Head, Department of Physics, University of Poona was also before the lower authorities. However, the same was rejected. The appellants have produced a chart which shows various processes of the mining and also various other processes the Ore undergoes before it is in a position to be packed and transported. Does this process of making the Ore transportable make it a separate chemically defined compound? The answer is in the negative. The product Scheelite Ore cannot be transported in the form it is mined. The same has got to be processed before it is in a position to be packed and transported. This fact is not denied by the Department. The view taken by the Supreme Court in the case of MMTC Ltd. v. Union of India and Ors. as reported in AIR 1972 SC 2551 in respect of Wolfram WO3 is very material for considering this aspect of the matter. The Supreme Court has held in Para 4 that "Wolfram is always selectively mined in the technical terminology. The selectively mined tungsten contains about 70% WO3. Such selective mining does not constitute a manufacturing process. Unless selective mining is done the tunges-ten ore cannot be exported or even sold in the country of its origin".