Judgment

GROVER, J.:- These appeals by special leave are from an order of the Government of India passed in November 1966 refusing to refund the duty charged on 200 metric tons of Wolfram Ore imported by the appellant Corporation from the U.S.S.R.

2. The facts are not in dispute. In October 1963 the appellant entered into a contract with a Moscow concern for the purchase of 200 metric tons of Wolfram Concentrate. The chemical composition of the goods apart from other components was to contain WO3 the minimum percentage being 65%.The Office of the Chief Controller of Imports and Exports, Government of India, granted an import license on November 21, 1963 permitting import of the aforesaid Wolfram Ore. The goods arrived in Bombay on January 4, 1964. It appears that certain tests were carried out by the Deputy Chief Chemist of Customs. The customs authorities levied duty under item 87 of the First Schedule - Import Tariff, at the rate of 60% amounting to Rupees 4,13,796.24. The appellant paid that amount under protest. The appellant claimed refund on the ground that no duty was leviable as the goods imported fell either under item 28 or 70 (7) of the said Schedule. On September 14, 1964 the Assistant Collector of Customs (Refund Section) held that the "goods imported were in powder form and were found to be mainly composed of Tungsten Oxide with small portion of iron and manganese oxides. The term ore mentioned in the text of item 26 I.C.T. is confined to articles which are in the form or condition in which they are mined. As such, ores in power form cannot qualify for assessment u/i 26 I.C.T. as they are not in the condition in which they are mined. Further the goods imported are Wolfram Ore Concentrate and not Wolfram Ore as mixed. Concentration of u/iore is considered a manufacturing process which will exclude its assessments u/i 26 I.C.T.,"

3. Three orders were passed by the Assistant Collector because the good had been imported in three consignments. The matter was taken in appeal to the Appellate Collector of customs. He disposed of the matter in January 1965. Before him a good deal of evidence was produced both from authoritative books and in the shape of certificates from experts that the goods were metallic ore. The Appellate Collector, however, held that the "goods in question were not subjected to simple washing with water but were made of special specifications by "dressing" and are therefore not classifiable as ores ". The appellant then took the matter in revision to the Government. The order of the Government was passed by the Joint Secretary on November 25, 1966. According to his view examination of the sample of goods showed that the good were in the form of fairly uniform granules Further they had been separated not only from the rock but also from various other impurities and had been subjected to such processing as would take them out of the category of metallic ore. Thus the correct position was that the goods imported were intermediary articles between ore and metal and had been correctly assessed under item 87.

4. The relevant entries in the Import Tariff contained in Annexure-L of the special leave petition may be set out :

Item No. Name of Article Nature of duty Standard rate of x x

MINERAL PRODUCTS

26. Metallic ores all sorts except ochres and other pigments ores and x x x

antimony ore Free

70(A) Cobalt chromium tungsten magnesium and all other non-ferrous virgin metals not otherwise specified). x Free

SECTION XXII (ARTICLES NOT OTHERWISE SPECIFIED)

87. All other articles not otherwise specified. Revenue 60 percent ad valorem."

The short question that has to be decided is whether Wolfram ore WO3 65% falls within item 26 which covers metallic ores of all sorts with the exceptions mentioned therein. It is and cannot be disputed that Wolfram ore which was imported does not fall within the exceptions. All that had, therefore, to be determined by the authorities were whether such ore was a metallic ore. In S