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2019 (1) TMI 1190 - AT - CustomsBenefit of exemption under N/N. 12/2012-Cus dated 17.03.2012 - Import of Gold dore bar falling under Customs tariff Item 7108 12 00 - the imported goods were produced by M/s Philippine Associated Smelting and Refining Corporation (‘PASAR’) which is a copper smelter and refinery and is not a mining company or laboratory attached to the mining company - revenue has denied exemption on the ground that the condition no. 34 (b) and (c) of the serial No. 318 of the Notification No. 12/2012–Cus dated 17.03.2012 was not followed by the Appellant and hence not eligible for exemption - Held that:- We find from the case papers that the undisputed fact is that the PASAR is controlled entity of Glencore which is involved in mining. The copper concentrate is sourced by PASAR from Glencore and used in its refining and smelter plant. It also has sulphuric acid plant and a dore plant which produced alloy of gold and silver. M/s Glencore holds 78.2% of the shareholding of PASAR and the production of PASAR is counted as production of Glencore. It is common for an entity to have its economic activity divided into various subsidiary companies. In the present case it is not in dispute that Glencore after mining of copper concentrate is getting the same refined and smeltered at PASAR which is its own subsidiary. Only for the reason that both the concerns are working under different set up, it does not take away the fact that PASAR is part of Glencore. Therefore there is no difference or distinction between the mining company and the producer company. The condition 34 (b) of the notification states that the goods are to imported in accordance with the packing list issued by the mining company by whom they were produced. Further the condition 34 (c) states that the importer has to produce before the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, an assay certificate issued by the mining company or the laboratory attached to it, giving detailed precious metal content in the dore bar. The assay certificate was issued by Glencore who is itself a mining company. The assay certificate cannot be denied on the ground that it is a provisional certificate. Also, the conditions of the notifications should be construed liberally and should not be so read that it leads to defeat of purpose of the notification. Appeal allowed - decided in favor of appellant.
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