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Hindalco Industries Ltd., Commissioner of Customs-Ahmedabad Versus Commissioner of Customs-Ahmedabad, Hindalco Industries Ltd.

2015 (3) TMI 948 - CESTAT AHMEDABAD

Denial of exemption claim - import of copper concentrates failing under CTH 2603 00 00 - benefit of Notification No. 24/2011-Cus. Dated 01/03/2011 - 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 - Held that:- Notification No. 24/2011-cus dated 01/03/2011 does not contemplate an option to be given by an importer to either stick to provisional assay certificate percentage or f .....

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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.

For a feasible solution it will be appropriate to take the value content of gold & silver, either in the provisional assay certificate or in the final assay certificate produced by the appellant, which ever is less, for allowing the benefit of Notification N .....

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ries Ltd. Dahaj, Bharuch, as well as the Revenue against OIA No. 34 to 36/2014-cus/Commissioner (A)/AHD dated 21.01.2004. 2. Sh. T. Vishwanathan. (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 certifi .....

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the case may be. That the final assay certificate given by the mining company as well as the trader may contain gold & silver content more or less than what was available in the provisional assay certificate. That in the case of Import directly from the mining company the final certificate given by mining company is considered for finalization of value and also the benefit of Notification No. 24/2011-Cus. dated 01/03/2011 is extended. That when the import is made through the trader the final .....

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AR) appearing on behalf of the Revenue argued that Notification No. 24/2011-cus. Dated 01/03/2011 does not recognize a final assay certificate given by the traders as it talks only of assay certificate given by the mining company. It was his case that department appeal should be allowed as commission (A) was not correct while allowing two options to the appellant while remanding the case to the Adjudicating Authority and that the benefit of Notification No. 24/2011-cus is not available to the ap .....

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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 of customs as is equivalent to the duty of customs leviable on the value of gold and silver contained in such copper concentrate, subject to the condition that the importer produces to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, as the case may be, an assay certificate from the mining company specifying separately, the valu .....

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ed the case back to the adjudicating authority after passing the following observations for finalising the provisional assessments in para 17.8 of the OIA:- 17.8. Careful scrutiny reveals that the appellant claimed exemption under Notification No. 24/2011-Cus dated 01.03.2011 from payment of basic customs duty on the value of gold and silver contained in the imported copper concentrate. They are following a special method of valuation of copper concentrate as per standard international practice. .....

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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 certificate issued by the mining company for assessment and allow duty exemption on value of Gold & Silver content considering the fact tha .....

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er. While effective rate of duty is applied to the value of copper concentrate, exemption notification is applied to gold and silver content (its respective total weights and value in consignment-value is relevant where duty is ad valorem on those two metals). Hence, if assay report of subsequent to import is taken into account, there would indeed be a transaction value as per contract, but the appellant would fail to meet the strict requirements of the Notification No. 24/2011-Cus dated 01.03.2 .....

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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 .....

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n the basis of final invoice (which is issued on the basis of load-port sampling/post-import assay reports of supplier), and forgo exemption on gold and silver contents in terms of Notification No.24.2011-Cus, supra. Since, this aspect would require appropriate finalization of provisional assessments, based on appellant s stand on the issue, it would be necessary to set aside the impugned orders and remit it back for finalization based on option given in writing by the appellant to the original .....

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