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2018 (12) TMI 174 - AT - CustomsBenefit of Concessional rate of duty - N/N. 19/1994-Cus dated 01.03.1994 - import of 15.00 MT “Weak Coking Coal” - weak coking coal having Ash content below 12% or not? - Department has observed that the appellant had wrongly availed the benefits of concessional rate of duty under N/N. 19/1994-Cus in as much as the exemption under subject Notification was specifically for the Coking Coal of Ash Content below 10.29%. Held that:- It is observed that there is no dispute that the sample is of coal in which ash content is 10.29%. In the bottom of the report it is mentioned as, no specification for weak coking coal with respect to its physico-chemical properties are available in the technical literature. However in the chemical analysis result, it does not show that whether it is weak coking coal or otherwise. Therefore, the test report 65-Cus/97 only confirms that the sample is of coal and Ash content is 10.29%. There is no dispute that the weak coking coal is also specie of coal ash content being 10.29% is well within the parameter prescribed in the entry Serial No of the notification i.e. below 12%. It can be seen that as per above report the remark of the chemical examiner regarding not mention of specification of weak coking coal is with reference to technical literature, it is nothing to do with actual analysis of coal conducted by the chemical examiner. Therefore, the report does not confirm that the goods imported by the appellant is not weak coking coal, therefore, only on the basis of the test report it cannot be concluded that the coal imported by the appellant is not weak coking coal. The department has nothing on record except the report to conclude that the coal imported by the appellant is not weak coking coal - Therefore, as regard the contention of the department that the coal imported by the appellant is not weak coking coal as per the test report is not correct, as the reports does not specifically gives the result that the coal is weak coking coal or otherwise. From the report, it is clear that the coal imported by the appellant is weak coking coal having Ash content much below 12%. It is also observed that the entire agreement for import of coal is in respect of weak coking coal and not for the coal other than weak coking coal - Though the appellant’s product is weak coking coal and exemption is granted for coking coal. This does not make any difference for the reason that coking is a genus term in which all type of coking coal covered such as prime/hard coking coal, semi-hard coking coal, medium coking coal, soft coking coal, semi-soft coking coal, weak coking coal etc. the only criteria is that Ash content should be less than 12% which is not under dispute even as per the report of CRCL, New Delhi, therefore, the appellant is eligible for exemption notification 19/94-Cus. In the present case even as per CRCL, New Delhi report the Ash content admittedly is 10.29 % - exemption is provided to weak coking coal which is genus of all coking such as prime/hard coking coal, semi-hard coking coal, medium coking coal, soft coking coal, semi-soft coking coal, weak coking coal etc. therefore, merely because the chemical examiner does not mention in the test result that whether it is a weak coking coal or otherwise, the exemption cannot be denied particularly when all other documents clearly establish that the coal imported by the appellant is weak coking coal of Ash content below 12%. The coal imported by the appellant is weak coking coal having Ash content below 12%, accordingly, the appellant is eligible for exemption Notification No. 19/94-cus - appeal allowed - decided in favor of appellant.
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