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2015 (2) TMI 741 - CESTAT MUMBAIClassification of imported Coal - Bituminous coal or Steam coal - Extended period of limitation - Identical issue already decided by the co-ordinate bench of tribunal - Held that:- It is a settled position in law as held by the hon'ble apex court in the case of Indo-International Industries [1981 (3) TMI 77 - SUPREME COURT OF INDIA] that- "if any term or expression has been defined in the enactment, then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment, the meaning of the term in common parlance or commercial parlance has to be adopted." In the present case, the Customs Tariff defines 'bituminous coal' by means of certain specification and if those specifications are satisfied in the case of imported coal, they will have to be classified as "bituminous coal' notwithstanding the fact that in commercial parlance they might be known otherwise. The argument of the appellant since Inherent Moisture is calculated on dry air basis, the same should be considered as Residual Moisture, this argument does not stand to any reason. The test certificate clearly defines the parameter as "Inherent Moisture" and not as residual moisture. The said test reports have been accepted by the appellants and they have never disputed the same. From the records, it is seen that the customs authorities had referred the matter to the Central Revenue Control Laboratory who had confirmed that the values of Ash content, sulphur content and Btu are to be applied on Air Dry Basis (ADB). There is nothing on record nor any evidence to the contrary led by the appellant to rebut the correctness of the calculation done by the Revenue. In this factual scenario, we do not find any merit in the contention that there is an error in the computation made by the Revenue. We further observe that a co-ordinate bench of this Tribunal at Bangalore had considered an identical issue involving the same goods imported by some other importers, at length and had passed a final order classifying the goods as "bituminous coal" under CTH 2701.12 and rejecting the contention of the importers that the goods are classifiable as "steam coal". In the absence of any evidence to the contrary, judicial discipline mandates that the said decision be followed by other benches of the Tribunal. Therefore, we do not find any reason to adopt a different view, at the interim stage of stay. As regards the issue of time bar raised by the appellant, it is both a question of fact as well as law. Nevertheless, considering the fact the appellants have been importing these goods since a long time and the test reports at the load port were available, it is surprising that the customs authorities had not examined the matter earlier. Therefore, there is some merit in the contention of the appellants in this regard. As regards the contention that since the goods originated from ASEAN countries, they would be eligible for the benefit of exemption under notification 46/2011-Cus, this contention is also quite valid. The appellants have not pleaded financial hardship in spite of a query from the bench in this regard. Therefore, the balance of convenience lies in favour of revenue in the absence of a prima facie case in favour of the appellant.The decision of the hon'ble apex court in the case of Dunlop India ltd. [1984 (11) TMI 63 - SUPREME Court] and Benara Valves Ltd. [2006 (11) TMI 6 - SUPREME COURT OF INDIA] refer. Accordingly we are of the view the appellants should be directed to make pre-deposit of the duty demand for the normal period of limitation. Partly allowed in favour of appellant.
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