TMI Blog2013 (2) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... Heading No.74.09 - Department classify "articles of copper" under sub-heading no.74.19 on the basis of Section Note 6 to Section Note XVI – Held that:- Section Note VI to XVI is in respect of the machinery items, it would not be correct to apply the same to the products of Chapter Note 74 falling under Section XV. Moreover, coin blanks which are used for manufacture of coins have not attained the shape or character of an article and as such, the same cannot be said to be articles of Copper or Copper Alloys. Therefore, of prima facie view that in terms of Chapter Note 1 (g) to Chapter 74, the Copper Alloys Coin Blanks would be correctly classifiable under Heading no.7409 Entitlement of DTA clearances – 100% EOU manufactures two or more p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied to Government of India Mint. There are three points of dispute in this case. 1.2 The first point of dispute is regarding calculation of education cess and higher education cess in respect of DTA clearances. In respect of DTA clearances, the appellants are liable to pay duty in terms of proviso to Section 3 (1) of the Central Excise Act, 1944 read with the relevant exemption notification, which is 50% of the aggregate of the Duties of Customs leviable on the import of like goods into India. While calculating the aggregate Duties of Customs, first the education cess is added to the basic customs duty and thereafter the Additional customs duty leviable under Section 3 (1) of the Indian Customs Tariff Act, 1975 is calculated which is equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, imposed penalty of Rs.50,00,000/- on the appellant. 1.6 Against this order of the Commissioner, this appeal along with stay application has been filed. 2. Heard both the sides in respect of stay application. 3. Shri B.L. Narsimhan, Advocate, ld. Counsel for the appellant pleaded that sofar as the first point of dispute regarding the education cess is concerned, this issue has been referred by the Tribunal to a Larger Bench vide Tribunal's judgement in Kumar Arch Tech Pvt. Ltd. Vs. CCE, Jaipur-II reported in 2011 (273) ELT 574 (Tribunal-Delhi) and that earlier the Tribunal vide judgement in the case of Sarla Performance Fibers Ltd. Vs. CCE, Vapi sported in 2010 (253) ELT 203 (Tribunal-Ahmd.) had decided this issue in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto complete or finished article, shall amount to 'manufacture', that this Section Note is applicable only to the items of machinery covered under Chapter 84 and 85 and this Section Note cannot be applied to the goods of Chapter 74 which are covered by Section XV, that US Customs in a Ruling dated 15th April, 1997 has held that brass coin blanks are correctly classifiable under Heading no.7409 and not under Heading no.7419 and similar view has been expressed in the ruling dated 10th Dec., 1991, that in view of this, the Commissioner's order classifying the coin blanks of copper alloys under sub-heading no.7419 as "articles of copper" is incorrect, that as regards the third point of dispute, in terms of para 6.8 (a) of 2009-2014 Foreign Trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icable, that when the goods manufactured by 100% EOU are cleared into DTA the same attract central excise duty as per the provisions of the proviso to Section 3(1) which provides the measure of the excise duty, that since the duty which is calculated in accordance with the proviso to Section 3 (1) read with any exemption notification, if any applicable, is only the excise duty leviable, on this duty education cess would also be leviable irrespective of the fact that in calculating the aggregate of the duties of customs, the education cess had been added twice, first while calculating the basic customs duty and thereafter while calculating the additional customs duty equal to the central excise duty leviable, that when the appellant manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same to the products of Chapter Note 74 falling under Section XV. Moreover, coin blanks which are used for manufacture of coins have not attained the shape or character of an article and as such, the same cannot be said to be articles of Copper or Copper Alloys. The plea of the DR that the US Customs Rulings with regard to classification of the Copper Alloys Coin Blanks under sub-heading no.7409 are not applicable is also difficult to accept when like USA, the India also follows the HSN based system of classification. We are, therefore, of prima facie view that in terms of Chapter Note 1 (g) to Chapter 74, the Copper Alloys Coin Blanks would be correctly classifiable under Heading no.7409 and not as an articles of Copper alloys under H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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