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2013 (11) TMI 1398 - AT - CustomsWaiver of pre-deposit - Classification of goods - Commissioner has confirmed the demand for duty on the ground that the goods imported are "Non Alloy Steel" falling under Tariff Heading 72.25 by virtue of Chapter Note 1(f) of Chapter 72 of Customs Tariff - Issue of Advance License - Duty free import of Non-Alloy Steel - Held that:- Any type of steel is an alloy and there is no definition of Non Alloy Steel in the Customs Tariff - The use of the word "Other" and the absence of definition of non alloy steel, at this stage, subject to detailed further hearing, prima facie indicates that Note 1(f) covers all forms of steel - when there are more than one elements to make it alloy steel but if all the elements are in different proportions, it would be non-alloy steel. If this interpretation is accepted than even as per MTC, the steel imported by the Applicants cannot fall under Note 1(f) - Prima facie it does appear that even if interpretation by both sides is considered, when two views are possible, on first principles, and without any reference to the case of Tata Motors, the one in favour of assessee must be preferred in matters of classification where as is the settled law, the burden to prove is on the Department. On limitation, it does appear that manufacturer's certificates were obtained instead of producing the MTCs for clearance. Even on the basis of the chemical composition in the MTC if the goods merit classification under heading 72.08, the non disclosure of MTCs would not amount to wilfull conduct or concealment on the part of the Applicant, particularly when description in the bill of entry is not disputed. Even the few Country of Origin Certificates with heading 72.25 did not raise any query or objection from the assessing officer since the goods were meant for manufacture of export goods - prima facie no illegal illegible benefit or gain to the Applicant, if all goods are exported and hence prima facie no case of intention to evade duty, given the absence of diversion or misutilisation is made out - since all duty free inputs as imported in this case are required for manufacture of goods for export and have infact as claimed and not disputed, actually so used, there is no question of passing of the incidence of duty - appellant has made out a prima facie case for waiver of pre-deposit of duty, interest thereof and penalty. Accordingly, the applications for waiver of pre-deposit of the amounts involved is allowed and recovery thereof until the final disposal of the appeal - Stay granted.
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