INDIAN HARD METALS (P) LTD v. UNION OF INDIA

SARKAru:A, J.-This is an appeal by special leave against \m order of the Government of India, Ministry of Finance (Department of o Revenue and Insurance). The order was passed by Shri B. Sen, Commissioner (Revision applications), Government of India. Indian Hard Metal (P) Ltd., the appellant, had imported 15 metric tonnes of wolfram ore from London. • The Customs authorities classified the said ore under item 87 of the Indian Customs Tariff and charged duty at E Rs. 62,871.03P., instead of classifying the imported ore either under item 26 of item 70(7) which are free from duty. These relevant items, as entered in tlle Imported Tariff, may be set out as nuder the rate of 60 per centi ad valorem amounting Item No. F 26 Name of Article Nature of Standard rate of Metallic ores all sorts except ochres and x Free other pigments ores and antimony ore. 700) Cobalt chromium tungsten magnesium x and all other nonferrous virgin metals not otherwise specified. x Free SECTION XXII (ARTICLES NOT OTHERWISE SPECIFIED) G 87 All other articles not otherwise specified. Revenue 60 per cent ad valorem. The classification made under the residuary item 87 at the time elf the import was upheld by the Assistant Collector of Customs; and the Commissioner of Customs dismissed the appeal of the assessee H by an order dated July 31, 1965, holding that the 381 bags of wolfram ore was correctly assessable at the rate of 60 per ceut duty under item 87 of the Indian Customs Tari.ff, and not being covered either . ...,... -+-- HARD METALS LTD. v. UNION (Sarkaria, J.) 471 by entry 26 or 70(7) of the Indian Customs Tariff, was not duty-free. The appellant preferred a Customs Act to the Government of India who declined to interfere and dismissed the revision. Hence this appeal. revision petition under s. 131 of Mr. Nain, appearing for the appellant, submits that the ore in question contained a concentrate of 74% of tungsten from wolfram and the rest were impurities. This concentration is the result of 'selective mining' process which invol~s crushing, washing and mag It does not bring about any chemical change in the netic separation. metal. At the minepit in its natural form, the ore is not of marketable quality because the tungsten content in it, 'then is hardly 0.5 to 2 -.,A.per cent. By the aforesaid concentrating process, the ore is convterted It is maintained that in commercial ~to ore of commercial quality. parlance wolfram ore of marketable quality must contain a minimum of 65 % to 70% of the metal, and in one of better quality, the con tent may be as high as 79 % . Even after being subjected to such process, the ore concentrate does not cease to be tungsten 'ore' within the contemplation of item 70(7) of the Indian Import Tariff. In sup port of his contentions, learned counsel has relied upon the judgment of this Court in Minerals & Metals Trading Corporation of India Ltd. v. Union of India & Ors. ( 1) 'and certain Certificates of experts, as also an extract from the treatise on 'Tungsten', by C.J. Smithells Chapman-Hall. A B c D E _ _._. As against this, Mr. Datar has drawn our attention to the order, dated July 31, 1965, wherein the Appellate Collector of Customs has observed that no evidence was adduced by the importer to sub __,,,- - stantiate the contentions that the ore in question had undergone no chemical process before being imported, and that the inference is that such high puri!kation of the concentrate could have been possible F only by applying process other than by water, crushing and magnetic separation. It is stressed that the decision of this Court in Minerals & Metals Trading Corporation of India Ltd. (supra), is not applicable because in that case the percentage of tungsten in the ore was 65 % only and that much concentration could be reached by physical pro- cess only, such as, crushing, washing etc.; while in the instant case, G the percentage of the wolfram contained in the goods concerned little over 7 5 % . In our opinion, the mere fact that the percentage of tungsten in the ore concentrate in the instant case is about 75 per cent, does not take the case out of the ratio of this Court's decision cited by Mr. Nain. H (I) [1973] 1 S.C.R. 997. A B e D E F G H 472 SUPREME COURT REPORTS [1979] 2 S.C.R. -:;;. - J In Minerals & Metals Trading Corporation of India Ltd. (supra), the appellant had imported 200 metric tons of wolfram concentrate from Russia, under a contract which prescribed minimum contents of 65 % of W03 in the concentrate. The Customs authorities levied duty at the rate of 60% ad valorem under item 87 of the First Schedule. The appellant claimed refund on the ground that no duty was leviable as the goods imported was an "ore" ·and fell under item 27 'or 70(7) of the Import Tariff. The Assistant Collector of Customs held that the appellant was not entitled to refund because the term '"ore" men tioned in the text of item 26 is confined to articles which are in form and condition in which they are mined and not as wolfram ore con- centrate in powder form as in that case. On appeal by the importer, . the Appellate Collector heild that the goods in (luestion were li the manufactured form made by special specifications by dressing and __ were thus not "ores". The Central Go~rnment rejected the revision ~ I-- application filed by the appellant, holding that the examination by the Chemists showed that the uniform granules of the material were not only separated from rock but also from various. impurities and had been subjected to such processing as would take them out of the category of metallic ore mentioned in Item 26. This Court, speaking through Grover J., a11owed the importer's appeal, with these apposite observations : "There is a good deal of force in the argument of Mr. Setalvad for the appellant the normally acceptable merchantable quality of wolfram or tungsten contains a minimum 65% W03. This is the usable ore and it is in that sense that it is commercially understood. Wolfram ore when mined contains only 0.5 to 2 per cent W03 and order to make it usable and merchantable ore with minimum If item 26 of the 65% W03, concentration is necessary. Import Tariff is to be restricted to wolfram being material containing 0.5 to 2 per cent W03, it would be mainly rock which can neither be imported in large quantity and wjiich will have no market. The separating of wolfram ore from the rock to make it usable ore is a process of selective min It is not a manufacturing process. The important test ing. is that the chemical structure of the ore should remain the same. Whether the ore ilnported is in powder or granule fonri is wholly immaterial. What has to be seen is what is meant in international trade and in the market by wolfram ore containing 60% or more W03. On that there is a I- HARD METALS LTD. v. UNION (Sarkaria, !.) 473 preponderant weight of authority both of experts and books and of writings on the subject which show that wolfram ore when detached and taken out from the rock in which it is embedded, either by crushing the rock and sorting out pieces of wolfram ore by washing or magnetic separation and other similar and necessary process, it becomes a concentrate but does not cease to be ore." (emphasis added) There is ample authority for the view that the tungsten content in the wolfram ore of marketable ,quality may :vary from 60 to 79 _... per cent, and a concentration within these limits, of the metal ~ in the ore can be attained simply by a process of a "selective mining", that is, by physical process not involving any chemical change in the metal. The following passage (vide Anncxure fl' in ithe record) cul- led out from the Introduction to the treatise on "Tungsten" by C.J. SmitheUs Chapman-Hall, fully bears out this conclusion : "Mining.-Tungsten ores, although so widely distributed rarely occur in massive form. The ores are usually found in narrow veins, but in ,some of the rich deposits the veins may in places be several mCllrcs wide. Cassiterite commonest metallic mineral associated with tungsten, but minerals captaining bismuth, molybdenum, lead and copper are frequently found; pyrite aud arsenopyrite are objection able minerals, which may be present in appreciable amounts, and other common minerals are quartz and fluorite. There are several kinds of ore deposits classified as segregates, peg matites replacement deposits, veins and placers. The tung sien content of the ore as it is mined is usually from 0.5 to 2 per cent, although it amounts to 6 per cent in rare The concentration of tungsten ores depends instances. chiefly on gravity methods, taking advantage of the high density of the metal, although floatation me-thods are also used. The concentrates, which contain 60-70 per cent W03, or in the better qualities 75-79 per cent should be virtually free from S.P, As, Sb, Bi, Cu, Sn, Ti, and Mo. Magnetic methods are employed to separate the tin and tungsten in the concentrates. Scheelite, however, is non-magnetic, but when it occurs with garnet, as it does in Tasmania, the garnet may be removed magnetically. The concentration of Wolframite ores is difficult on account of their mica-like formation. Ex cessive crushing leads to high losses in tabling and as far as 12~978 SCI/78 A B c D E F G H .-,t A B c 0 E F G H 47 4 SUPREME COURT REPORTS [19791 2 s.c.R. possible crushed." the ore should be separated when coarsely (Emphasis supplied) There is on the record another Certificate in the form of a letter, dated February 3, 1965, from the Director, National Metallurgical Laboratory, Jamshedpur, addressed to the Controller of Customs, Calcutta, in which it is opined : "The wolfram ore is always selec tively mined in the technical terminology .... such "selective mining" does not constitute a manufacturing process. Unless selective mining is done, the tungsten ore cannot be exported or even sold In view of the above, the import of selectively country of its origin. mined tungsten ore containing 65% W03 or more should not be __ regarded as the import of a product which has been manufactured'_ overseas and has passed through the manufacturing process. By the expression 'selecti'.'ely mined', we mean that the wolfram ore detached and taken out from the rock in which it is embedded '1nd this is done by crushing the rock and sorting out piece of wolfram ore therefrom either by hand or by washing or magnetic separa- tion." __,- _ Then, there is another Certificate from R. Y. Briggs & Co. Pvt. Ltd., who claim to have been analysing various ores and minerals including wolframite for over 60 years. According to these experts, wolframite is always concentrated as part of the mining operation. The normal method is by washing the crushed ore, thereby freeing the mineral from the gangue. These experts have further certified that the wolfram ore, which they have analysed for M/s. India Hard Metals, It may be observed that in the Minerals & Metal Trading Corporation (ibid), also, this Court had relied upon a similar Certificate from R. V. Briggs & Co. is processed except for physical concentration by washing. Still, another Certificate, dated January 13, 1965, which is more or less to the same effect as the Certificate of the National Metallurgical Laboratory, was brought in evidence. A similar Certificate from this Laboratory was relied upon as authentic expert opinion in the earlier case, also, decided by this Court. No authority or expert -0pinion has been cited before us that a concentration of 75 per cent tungsten in wolframite ore of commercial quality, cannot be achieved merely by 'selective mining', physical process of crushing, washing, gravitation, magnetic separa tion or the like. Nor is there any evidence on the record to show i.e. HARD METALS LTD. v. UNION (Sarkaria, J.) 47 5 that the mined ore was subjected to any chemical process which caused a change in the chemical structure of the ore. The finding of the Appellate Collector of Customs that such a high degree (75%) of tungsten metal virtually free from impurities in the material, could be attained only by some chemical manufacturing process and not merely by crushing, washing or magnetic separation, is not based on any evidence whatever. It is contrary to the opinions of experts and authorities on the subject, which were brought on the record. It is evident from the passage extracted from Smithells' treatise, and the ~ther Certificates of experts, mentioned above, that in order to bring mined wolframite ore to a marketable quality, it has to be concen trated by physical methods, such as, crushing, washing, gravitation. p nagnetic separation etc. And by such physical process only, a con cenfration of W03 varying from 60 per cent to 79 per cent in the ore can be achieved. Wolframite (W03) of ordinary merchantable quality contains 60 to 70 per cent of tungsten, while wo!framitc ore of better commercial quality contains 75 to 79 per cent of metal. , ,..-- -r- A B c D In the light of the above discussion, there is no manner of doubt that the goods imported by the appellants had to be classified as im ported ore, falling either under item 26 or item 70(7) of the Import Tariff, and as such, no duty was levliable on them. The appellants are, therefore, entitled !O the refund of the duty paid by th'cm on the E goods in question. In the result, the appeal is allowed with costs, and the impugned orders including the Order dated October, 26, 1968, of the Central Government, are set aside. The respondents are directed to make appropriate orders for refunding the amounts collected from the appel lants by way of import duty on the goods in question. F N.V.K. Appeal allowed.