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M/s Graphite India Ltd. Versus Commissioner of Customs (Port) , Kolkata

2015 (10) TMI 2393 - CESTAT KOLKATA

Duty demand - Import of Electrode Grade Calcined Petroleum Coke – Classified goods under CSH No.2713 11 12 and claimed benefit of exemption Notification No.20/2006-Cus - Show-cause cum demand notice issued for wrong availment of benefit under exemption – Appellant states that word "coke" is generic term and not indicative of any particular source of origin and different tariff heads cover different varieties of coke - Benefit of exemption should be allowed to all varieties of coke and same canno .....

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t. – Decided in favour of Appellant. - Cus. Appeal No. 225/09 - Final Order No. A/75418/KOL/2015 - Dated:- 22-6-2015 - D M Misra, Member (J) And I P Lal, Member (T) For the Petitioner : Shri Arvind Behati, Adv For the Respondent : Shri S K Naskar, Asstt. Comr. (AR) ORDER Per D M Misra This appeal is filed against Order-in-Original No. Kol./Cus/Port/16/2009 dated 09.03.2009 passed by Commr. of Customs (Port), Kolkata. 2. Briefly stated the facts of the case are that the Appellants are manufacture .....

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the said benefit. Subsequently , they were issued with a show-cause cum demand notice on 02nd July, 2008, alleging wrong ayailment of Notification No.20/2006-Cus dated 1st March, 2006 and duty of ₹ 6,76,533/- was demanded under proviso to Sec. 28(1) of Customs Act,1962. On adjudication, the ld.Commissioner confirmed the demand and imposed equivalent penalty under Section 114 (A) of the Customs Act, 1962. Hence the present appeal. 3.1 Assailing the impugned order, the ld.C.A. appearing for .....

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s covered under Tariff Heading 2713. Therefore, the word "coke" is generic term and not indicative of any particular source of origin. He submits that the ld.Commissioner failed to appreciate that Tariff Heading 2704 covers only one of the varieties of coke and comparing with similar Tariff Heading 2713, is like comparing different varieties/types of coke, which is not the issue for deciding the Appellant's claim for exemption under the aforesaid Notification. Further, he has submi .....

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ite or pitch, which are nowhere mentioned in the said notification so as to allow the benefit to coke obtained only from these sources. 3.2 Further, he has submitted that there is no dispute of the fact that calcined petroleum coke is also a form of coke. In support, he has referred to an extract of Materials Hand Book by George S. Brady, which states that the terms "coke" includes pitch coke, petroleum coke, calcined petroleum coke etc. Therefore, the benefit of exemption should be al .....

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eleservices Ltd. Vs. Comissioner of Customs : 2006 (194) ELT 11 (SC) & Gujarat State Fertilizers Company Vs. Collector of Central Excise : 1997 (91) ELT 3 (S.C.). 3.4 Further, he has submitted that in the present case, the notification does not make any distinction between the coke produced out of coal and/or petroleum. The description of SI.No.2 of the notification covers "coal and petroleum products". Therefore, from the context of the notification, it could be gathered that the .....

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tted that the demand is barred by limitation. In the Bill of Entry, the goods were clearly described as "Electrode Grade Calcined Petroleum Coke", which itself indicate that the "coke" imported was "petroleum coke" and not obtained from coal. Therefore, there is no suppression of facts and claiming classification or exemption on the basis of description by itself cannot be constituted as mis-statement/mis-declaration or suppression of facts. In support, he has refer .....

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that there cannot be different practices in different Customs Houses. 4. The ld.A.R. for the Revenue, reiterated the findings of the ld.Commissioner. 5. Heard both sides and perused the records. The short issue involved in the present case, for determination is whether the imported goods, namely, "Electrode Grade Calcined Petroleum Coke" failing under Chapter Sub-heading No.27131200, was eligible to exemption Notification 20/2006-Cus dated 01.03.2006 as amended. The said Notification r .....

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s are specified the corresponding entry in column (2) of the said Table, when imported into India, from so much of the additional duty of Customs leviable thereon under sub-section (5) of Section 3 of the said Customs Tariff Act, as is in excess of the amount calculated the rate specified in the corresponding entry in column (4) of the Table aforesaid :- TABLE Sl. No Chapter, heading, sub-heading or tariff item of the First Schedule Description of goods Standard rate (1) (2) (3) (4) 2. 27 Petrol .....

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from "petroleum". The meaning of "coke" as referred to by the ld.C.A. for the Appellant, mentioned in McGraw-Hill, Dictionary of Science and Engineering, is as below : "Coke [MATER] A coherent, cellular, solid residue remaining for the dry (destructive) distillation of a coking coal or of pitch, petroleum, petroleum residues, or other charbonaceous materials ; contains carbon as its principal constituent, together with mineral matter and volatile matter." The Mater .....

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s clear that under the said Notification, petroleum crude, kerosene, LPG, petrol, diesel coal, coke etc., have been allowed the benefit. Thus, reading in the context, the coke derived from coal only, cannot be read into the said Notification, while allowing exemption to the coke derived from other sources, like petroleum. 6. This interpretation receives support from the judgement of the Hon'ble Supreme Court in the case of SAIL Vs. Collr. Of Central Excise, Bolpur, West Bengal (supra), where .....

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