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2015 (3) TMI 948 - CESTAT AHMEDABAD

2015 (3) TMI 948 - CESTAT AHMEDABAD - 2015 (329) E.L.T. 395 (Tri. - Ahmd.) - 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 .....

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ing 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.

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 .....

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H. K. Thakur These appeals have been filed by appellant M/s. Hindalco Industries 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-Cu .....

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ng final content of gold & silver by the mining company or the trader as 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 01/0 .....

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ation No. 24/2011-cus. Dated 01/03/2011 can not be denied. 3. Sh. J. Nagori (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 an .....

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he 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 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, .....

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Under the impugned OIA dated 21/01/2014 first appellate authority has remanded 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 meth .....

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on 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 certificate issued by the mining company for assessment and allow .....

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equires ascertainment of copper contents as well as contents of gold and silver. 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 m .....

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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, especi .....

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of gold and silver contained in the imported copper concentrate OR pay duty on 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 fi .....

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