V.P. Gulati, Member (T)

1. These appeals are against the order of the Collector of Customs (Appeals), Madras. The brief facts of the case are that appellants imported and cleared for home consumption a number of consignment of pitch (aluminium grade) and apart from the duty under the Customs Tariff, countervailing duty was charged under Tariff Item 68 CET. The appellants, however, claimed the assessment of the same under Tariff Item 11 (2) CET, read with Notification No. 121/62-CE. The plea of the appellants before the lower authorities as before us is that the pitch imported by them is covered by the description partially distilled coal tar' under Tariff Item 11 (2) CET and benefit of assessment, therefore, under Notification 121/62-CE available to the same should be allowed to them.

2. The learned Advocate for the appellants pleaded that pitch imported by the appellants was intended for making electrodes. He pleaded that basically there is not much difference between the pitch and tar and in support of his plea, cited the publication - Coal Tar Products and Related Dyes page 56 and drew our attention to the following observations in this publication:-

There are no fundamental differences in properties between pitch and tar and there can be no sharp division between the two materials. The dividing line is purely arbitrary and is dictated by convenience for commercial reasons rather than on scientific grounds.

He pointed out that in the same publication at page 58, the use of the pitch is spelt out as Binder for carbon anodes required for the manufacture of electrolytic cells. He pleaded the pitches are partially distilled tars and he produced evidence from the experts before the lower authorities and they, he pointed out, have categorically stated that the pitch is only partially distilled tar. In this connection, he drew our attention to the affidavit filed before the lower authorities by one Sh. K.K. Cherian, Works Metallurgist of the appellant company. The learned Advocate for the appellants pointed out that Metallurgist has stated that the pitch is obtained by partial distillation of tar. He pleaded that inspite of the affidavit having been filed, the lower authorities did not choose to cross-examine the Metallurgist. He also drew our attention to the letter of Sh. P.N. Mukherjee, Deputy Director, Central Fuel Research Institute, Dhanbad (Bihar). For convenience of reference, the relevant portion of this letter is reproduced below:-

Please refer to your letter dated 11th Sept., 1982 regarding our opinion on pitch. We fully corroborate your views as conveyed in your letter. Pitch is definitely a product which is obtained by distillation of tar. Accordingly, we are giving a statement which may be utilized by your company to get clearance from customs.

3. A certificate signed by same gentleman dated 30th Sept., 1982 has also been cited by the learned Advocate in support of his plea. This certificate is also reproduced below for convenience of reference :-

To whom it may concern

Coal tar pitches are obtained by the distillation of coal tars. In commercial practice coal tars are distilled to remove volatile oils, boiling upto about 360° C. The residue is discharged as pitch and sold as such. This pitch still contains volatile components, which can be removed by heating. By this procedure it is possible to get pitches of higher softening points. If the distillation is carried out to temperatures around 1300° C the product is pitch coke. Thus the pitch in question is an intermediate product obtained by partial distillation of tar to remove volatile oils. Hence pitch is partially distilled tar.

4. The learned Advocate stated that this certificate and Shri P.N. Mukherjee's letter above were in reply to their letter addressed to the Director, Central Fuel Research Institute dated 11th Sept., 1982. In this letter, the appellants stated the facts regarding the two competing items for assessment and they explained the nature and use of th