TaxTMI 
TaxTMI 
2015 (3) TMI 948
X X X X Extracts X X X X
X X X X Extracts X X X X
....ishwanathan. (Advocate) and Sh. Manish Jain (Advocate) appeared on behalf of the appellant and also filed written submission Sh. T. Vishwanathan (Advocate) argued that appellant imported copper concentrates failing under CTH 2603 00 00 and claimed the benefit of Notification No. 24/2011-Cus. Dated 01/03/2011. That as per this exemption notification an assay certificate from the mining company is required to be furnished for getting deduction of the value of gold & silver content contained in the copper concentrate. That appellant is getting copper concentrate directly from the mining companies as well as through the traders. That the assay certificate available at the time of import from the mining company is provisional. That samples are t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Adjudicating Authority and that the benefit of Notification No. 24/2011-cus is not available to the appellant when final assay certificate is issued by any person other than the mining company. 4. Heard both sides and perused the case records. For better appreciation of the issue Notification No. 24/2011-cus dated 01/03/2011 is reproduced below:- "In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts copper concentrates falling under the tariff item 2603 00 00 of the First Schedule to the Customs Tariff Act, 1975(51 of 1975), when imported into India, from so much of the duty....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o be acceptable by the respondent department. It, However, creates a quandary because of contradiction between valuation and application of effective rate of duty by a notification, which does not recognize any assay report except that of a mining company. In other words, for the determination of transaction value series of further testing/assay is a sine qua non as per contract, the exemption on the value of gold and silver content strictly requires relying only and only the assay report of the mining company. While provisional assessment remains harmonious on this aspect, the final assessment falls into contradiction. Indeed, the appellant had requested to accept the final invoices issued by the supplier and assay certif....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ver contained in the imported copper concentrate, they cannot change the assay value and hence, will have to determine value for payment of duty on copper concentrate based on assay report of the mining company, and not on the basis of post-import assay reports. If this is not done in this manner, there would be a different value of copper concentrate, gold and silver for payment of duty on copper concentrate and a different value for exemption on gold and silver vide notification No.24.2011-Cus dated 01.03.2011. It may put appellant in adverse condition, especially in this particular case where the value of copper concentrate decreased and value of gold and silver increased, there may be reverse price changes in the international trade as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....an assay certificate from the mining company to specify separately the contents of silver & gold. There is no objection by the department for accepting final assay certificate when imports are directly from the mining company when Final assay certificate of the mining company is accepted both for finalising provisional assessments and for allowing exemption under Notification No. 24/2011-cus. However, it will be unfair if appellant is disallowed exemption when final assay certificate is given by an agency other than the mining company, but Notification No. 24/2011-cus does not provide for such acceptance. Under the circumstances Revenue could have also got the contents in the copper concentrate determined by getting the samples tested eithe....