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Ultratech Cements Ltd, Jaiprakash Associates Ltd, MMTC Ltd, PTC India Ltd Versus Commissioner of Customs, Visakhapatnam

Benefit of Notification No. 12/2012-Cus.– Classification of coal – Sole question is with regards to classification of coal – If it is held to be bituminous coal appellant would not be eligible for benefit of Notification No. 12/2012-Cus., thereby giving rise to demands which have been confirmed by adjudicating authority in all cases – Held that:- clear that inherent moisture and residual moisture are different from each other –Difficult to accept contention of appellants that what has been deter .....

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of 2014, Customs Appeal Nos. 21545, 21554, 22304 & 22481 of 2014 - Stay Order Nos. ST/20892-20895/2015 - Dated:- 25-5-2015 - G Raghuram, President And B S V Murthy, Member (T),JJ. For the Appellant : Mr G Prahlad, Adv For the Respondent : Mr S K Singh, AR (Commissioner) ORDER Per: B S V Murthy: In all the stay applications, the issue involved is the same and therefore all the four stay applications are taken together and a common order is passed. 2. The issue involved is whether the coal importe .....

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16) ELT 305 (Tri-Chennai) and therefore, in accordance with the settled practice where the matter is referred to a Larger Bench, waiver of pre-deposit and stay against recovery is to be granted. In these cases also, waiver of pre-deposit and stay may be granted. It was also submitted that the Tribunal while referring the issue to a Larger Bench had taken note of the decisions of Bangalore Bench of the Tribunal in the case of Coastal Energy Pvt. Ltd. and Others - C/21178,21255,21257,20700,21458/2 .....

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submitted that in the case of Ultra Tech Cements Ltd, the facts are entirely different. It is his submission that even if GCV is calculated on the basis ARB (as received basis), in the case of Ultra Tech Cement Ltd. the GCV would be higher than 5833 making it classifiable as bituminous coal. However, after hearing both sides, it was found that GCV on ARB has not been calculated by either side. 5. ld. Commissioner (A.R.) also submitted that Load Port Report provides inherent moisture determined b .....

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of the tax as pre-deposit. Under the circumstances, and in view of the fact that there are orders of the Tribunal which are very detailed and considered all the aspects of the matters and in view of that reference can be relatable to certain principles, the pre-deposit may be ordered in these cases also. 6.We have considered the submissions. 7. In paragraph 7.3 relevant clauses of ASTM have been reproduced. Residual moisture according to the discussion in paragraph referred to above is as under: .....

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t specified conditions of residence time atmosphere, particle size, sample mass, and equipment configuration 8. After indicating different types of moisture and making stating that "inherent moisture" also refers to as "bed moisture" or "equilibrium moisture". The "equilibrium moisture" has been explained as under: Equilibrium Moisture - The ASTM standard method of determining the equilibrium moisture in coal is ASTM D 1412 - Equilibrium Moisture of Coal a .....

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ust be taken to obtain reliable results. It is clear that inherent moisture and residual moisture are different from each other. It has not been contested before us nor there is any observation in the decision of the bench while referring the matter to larger Bench that Load Port Report did not determine the inherent moisture. In fact, the decision referring the matter to a Larger Bench proceeds on the basis that what has been determined in Load Port Report is C.V. limit on inherent moisture on .....

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ture indicated is Fahrenheit whereas for determination of inherent moisture, drying has to be done at 30°C much lower than the temperature for the purpose of determining residual moisture. Since Department has not done any test and ld. Counsel did not deny that load port report on these cases clearly indicated inherent moisture in the coal. Prima facie, correctness of calculation of C.V. limit on the basis of inherent moisture cannot be questioned. 9.Under the circumstances, it becomes diffi .....

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0. The relevant reference for the Larger Bench by Chennai Bench of the Tribunal is as under: (i) Whether in the facts and circumstances of the case, C. V. limit on inherent moisture of the imported coal, as per sub-heading Notes 2 Chapter 27 of C.T.H, would be determined on the basis of Load Port report/Survey report on Air Dried Basis (ADB) as held by the Bangalore Bench of the Tribunal in the case of Maheswari Brother & Other (supra). What has been referred to is whether inherent moisture .....

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