TMI Blog1991 (3) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... t goods were exempted from export duty under Notification No. 329/76-Cus. dated 2-8-1976 on the ground that as the material was passing through seive of mesh size-2, the subject goods were covered by the said exemption Notification as the mixture was overall covered by Sl. No. 3 and 4 of the table appended to the Notification. However, the Assistant Collector of Customs, vide his adjudication Order-in-Original dated 11-11-1986, rejected the said refund claim of the appellants. Aggrieved, the appellants filed their appeal before the Collector of Customs (Appeals), Bombay, but without success. Hence the present appeal. 3. We have heard Shri F.U. Taleyarkhan, advocate for the appellants and Shri L.C. Chakraborty, learned JDR for the respondent. 4. Arguing on behalf of the appellants, it was contended by Shri F.U. Taleyarkhan, advocate, that processed Mica Powder and Mica Flakes of 2 mesh and above but below 6 mesh are totally exempted from export duty under Notification No. 329/76-Cus. dated 2-8-1976, as could be seen from Sl. No. 3 and 4 respectively of the table appended to the said Notification. The appellants received an Order for supply of Mica Flakes from abroad. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... test report received from the C.R.C.L. Laboratory, New Delhi, cannot be sustained. 5. In reply it was contended by the learned JDR, Shri L.C. Chakraborty, that while classifying the goods, the burden is on the Department to prove as to under what Tariff Item the goods fall but when the benefit of an exemption Notification is claimed by the party the burden is upon him to prove that his case falls within the exemption Notification. In other words, his submission was that, since in the instant case, the appellants were claiming the benefit of the said exemption Notification it was for them to prove their case, which they failed to prove. Not only this the appellants deliberately in the Shipping Bill described the goods as Mica Flakes below 2 mesh to 40 mesh apparently claiming the benefit of Sl. No. 4 of the said Notification No. 329/76-Cus. dated 2-8-1976. To put it differently they never declared that the subject goods as Mixture of Mica Powder and Mica Flakes and it is only when the goods were detained for clearance and got tested that true facts which came out that the subject goods were not Mica Flakes as declared by the appellants in the Shipping Bill, but were Mixture of Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mica blocks (other than calcined mica blocks) and condenser films of grade number 2 and grades superior thereto. 30% 8. Mica blocks (other than calcined mica blocks) and condenser films of all grades other than those specified against serial number 7 above. 20% ad valorem 9. Calcined mica blocks and calcined mica scrap Nil. Emphasis supplied 7. Since there was a dispute regarding the nature of the subject goods, samples were drawn. On analysis the Chemical Examiner in his report dated 15-2-1985 reported as follows: No. KCL/Cus/1322/8-2-85 Report: The sample is in the form of a mixture of flakes and powder. It is Mica Scrap. The flakes retained on sieves of mesh 2 and above but below six is 41.8% and the rest passes through 10 mesh and above. It is not uniform in its size and therefore can t be treated as processed Mica powder. Sd/- Sd/- 15-2-1985 15-2-1985 Chemical Examiner" A copy of the said report of the chemical analysis was sent by the Deputy Collector of Customs, Kandla, vide his letter dated 6th April, 1985, stating that in case the appellants are aggrieved of the test report they may f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Mixture was overall covered by Sl. No. 3 and 4 of the Table appended to the Notification. However, the Assistant Collector negatived the said contention and recorded his findings as follows: The reasonings given in para - 3 above (brief facts) for charging duty are correct. The Sr. No. 3 4 of the table seek to exempt goods which are exclusively covered by each of these Sr. Nos. individually and there is nothing to indicate that the mixture having ingredients partly falling under Sr. No. 3 and partly falling under Sr. No 4 is exempt from duty. It is true that if the goods were screened and seived through a mesh of 2-6 size and thus segregated in two parts one of mica flakes of 2 and below 6 and the other part of 6 mesh and above and packed separately and tendered for export as such both the individual items would have been exempted from duty as clearly covered by Sr. No. 3 and Sr. No. 4 of the notification (since mica flakes of 6 mesh and above are considered as powder) i.e. if the impugned goods had been subjected to a process of manufacture to separate the aforesaid mixture into separate items the benefit of this notification could have been extended to each item separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity Control and Inspection) Rules, 1963", wherein under Rule 2(d) Fabricated Mica has been defined as follows : Fabricated Mica" means cut mica blocks and condenser films, cut plates, punched backing plates or backers, punched bridges, spacers, trimmers, transistor plates or transistor pads, washers and discs and all varieties of mica cut or punched to specified shapes or sizes. This, however, does not include micanite, built-up mica, mica tape, mica cloth, mica silk, mica paper, mica folium and mica powder flakes and mica elements wrapped with wire or any other foreign elements." and also to Notification No. 237/83 issued under Section 7 of the Export of Fabricated (Quality Control and Inspection) Rules, 1963 wherein the explanation appended to the said Notification provides that: Fabricated Mica" means cut mica blocks and condenser films, cut plates, punched backing plates or backers, punched bridges, spacers, trimmers, transistor plates or transistor pads, washers and discs and all varieties of mica cut or punched to specified shapes or sizes. This, however, does not include micanite, built up mica, mica tape, mica cloth, mica silk, mica paper, mica folium and mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid pig iron when mixed with other materials then the Notification would have used the expression only or exclusively or entirely in regard to duty-paid pig iron. The object of the notification was to grant relief by exempting duty-paid pig iron. While interpreting so it was kept in mind that the Notification would have to be interpreted in a manner that the statute would not cast a burden twice over for payment of tax on the tax payer unless the language of the statute is so compellingly certain to that effect. In the instant case no question of double taxation arises and each and every goods have been described itemwise. In this case the appellants mis-declared the said goods in their Shipping Bill by stating that the subject goods are Mica flakes below 2 mesh to 40 mesh and it is only when the Department suspected and got it tested it came to the notice that the goods were neither Mica Flakes of given mesh nor processed Mica Powder but the Mixture of the two. The language of the Notification is very clear and there is no ambiguity in it. That apart, from the entry appearing at Sl. No. 5 of the Table attached to the said Notification No. 329/76-Cus. it is clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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