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2021 (10) TMI 251 - Customs
Classification of imported goods - Zircon Sand Bulk (Zirconium Ore) - to be treated as ‘concentrate’ to deny exemption of CVD as per Sl. No. 56 of N/N. 12/2012-C.Ex. dated 17.03.2012 or otherwise? - HELD THAT:- In the Circular F.No. 332/1/2012-TRU dated 17.02.2012, clarification has been issued that processes in the nature of crushing, screening, sizing or washing will not result in ‘concentrate, which is leviable to Central Excise Duty. That the term ‘concentrate’ applies to ores which have had part or all of the foreign matter removed by special treatment.
It can be seen that for previous import, the Department had sent samples for analysis and expert opinion to ascertain whether the imported goods are Zirconium ore or Zirconium concentrate. The percentage of Zirconium Oxide contained in the goods would help to ascertain the nature of the goods. However, in the present case, the Department has failed to draw samples and send for analysis - When the Department has sent the samples for test for the previous imports, we do not understand why they have failed to take such steps in respect of the present consignments. In the absence of such opinion by an expert, it is not possible to ascertain the nature of the goods as to whether they are ores or concentrates. Even in the Tariff, ‘ores’ and ‘concentrates’ fall under the same Chapter Heading. Similarly, the Customs Notification No. 12/2012-Cus. dated 17.03.2012 grants exemption from Basic Customs Duty of all goods under Chapter 26 (2601 to 2607) i.e., to both ores and concentrates, in terms of Sl. No. 117. The Department cannot decide that the nature of the goods to be ‘concentrate’ merely by stating that certain processes were undertaken by the appellant.
As per the HSN Explanatory notes to Chapter 26, the term “concentrate” applies to ores which have had part or all of the foreign matter removed by special treatment. In the present case, there is no evidence to show that the subject goods have undergone any special treatment. Mere washing, cleaning and drying cannot be considered as special treatment - There is no expert evidence adduced by the Department to rebut these chemical analysis reports furnished by the appellant.
Only on the fact that the goods have undergone processes of cleaning, washing and drying, it cannot be concluded that the imported goods are Zirconium concentrate. The importer-appellant having furnished the chemical analysis report of the overseas supplier, the same cannot be totally disregarded unless there is a report of an expert contrary to this analysis report - On the basis of the analysis report of the overseas supplier as well as the clarification issued by the Board vide Circular F.No. 332/1/2012-TRU dated 17.02.2012 that when ores are only subjected to processes like crushing, sizing, screening and washing, the resultant product cannot be considered as ‘concentrate’, we have to hold that the imported goods are ‘ore’ and not ‘concentrate’.
The imported goods are Zirconium ore and not concentrates. The demand of Duty (CVD) by denying the benefit of exemption Notification No. 12/2012-C.Ex. dated 17.03.2012, is not legal and proper - Appeal allowed.