Judgment

RAY, J.:- This appeal under S. 130-E(b) of the Customs Act, 1962 is directed against the judgment and order dated August 14, 1989 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, Bombay in CD (Bom) A. No. 322 of 1989.

2. The most vital question that comes up for consideration in this appeal is whether marble as mentioned in Tariff Item No. 25.15 in Appendix 1-8, Schedule 1 to the Import (Control) Order, 1955 mentioning "Marble, Travertine, Ecaussine and other calcareous monumental or building stone of an apparent specific gravity of 2.5 or more and Alabaster, whether or not roughly trimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape" is genus within which all other kinds of calcareous stones are included or whether marble is a distinct or different item which is one of the restricted items in the List of Restricted Items described in Appendix 2, Part 3 of Import and Export Policy for April 1988-March 1991.

3. The matrix of the case is that the appellant has been carrying on business as sole proprietor under the name and style of M/ s. Interior Manufacturers at A-12, Yuwan Apartments, 413/414, Mount Mary Road, Bandra, Bombay which is a small scale industry engaged in processing of stone slabs. In the course of his manufacturing activity the appellant utilises and requires as raw material polishable calcareous stones viz. marble, travertine, ecaussine, alabaster and other calcareous stones. All these different types of stones are hard and capable of taking polish. Marble is distinguished from other calcareous rocks, by the fact that it is a metamorphic rock formed from re-crystallisation of limestones and has a visibly crystallined nature. In order to import calcareous stones covered by the Open General Licence and with a view to ensuring that the same was not marble, the appellant took the following precautions :-

(1) The appellant referred to the Indian Standards Specification for Marble viz. IS: 1130-1969 which defines marble as follows:

Para 0.2:

"Marbles are metamorphic rocks capable of taking polish, formed from the re-crystallization of limestones or dolomitic limestones and are distinguished from limestone by even visibly crystallined nature and non-flaggy stratification.

Para 0.7 of the said Specification provides that :

"The Sectional Committee responsible for the preparation of this standard has taken into consideration the views of producers, consumers and technologists and has related the standard to the manufacturing and trade practices followed in the country in this field."

(2) The appellant obtained from the foreign exporters a sample tile of Bitticino, the calcareous rock proposed to be imported and had the same tested by a reputed Geologist, Dr. S. F. Sethna who tested the sample and by his report dated October 13, 1988 confirmed that the same was not marble. His letter dated October 14, 1988 explains how the sample tested was limestone, different from marble. The sample tile tested and attested by Dr. Sethna was submitted to the Customs Department vide their letter dt. February 20, 1989.

(3) The appellant then referred to an Italian Book Marmi Italta wherein the index evidenced the fact that Botticino varieties were covered under polishable calcareous rocks and not under true marbles (re-crystallised calcareous rocks).

(4) The appellant specifically placed an order for calcareous stones (other than marble) and asked the Exporter to certify that the said goods were not marble. The Exporter Elle Marmi of Italy by a certificate dated December 6, 1988 certified that all the goods were calcareous stone slabs other than marble.

(5) The appellant also obtained the certificate dated December 6, 1966 from one Gianni C.. Saigini, a Surveyor registered with the Chamber of Commerce, Carrara and a Specialist for stones. Gianni C. Saigini after checking the said consignment loaded in the containers for import by the appellant in Italy certified that