TMI Blog2017 (8) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... e same at CRCL or customs laboratories, both sides categorically stated that no samples were drawn and no analysis was done on the imported goods. In absence of any acceptable evidence that the imported goods were not ore but concentrate, we find that the lower authorities have not shifted the burden of proof on to the appellants. It is the claim of importers/appellants herein that they have imported ore and it is the case of the Revenue that the imported ore is nothing but concentrate, in order to classify the product under concentrate, it is expected out of the Revenue authorities to adduce some evidence that the said products were concentrate merely relying on the interpretation of HSN explanatory notes will not suffice to shift the burden of proof on to importer appellants. In the absence of any such evidence, we have to hold that the Revenues case fails. Concentrate term will apply to ore which have had part or all of the foreign matter removed by special treatments. In all these cases in hand, Revenue has not able to bring on record or state categorically that the Manganese ore which is imported by these appellants has undergone special treatmentsto hold the goods as conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manding differential additional duty of customs. In appeal, the Commissioner(Appeals) has upheld the orders of the lower authorities and rejected the appeals of the appellants. Aggrieved, all these appellants have filed appeals before this forum. 3. Today when the matter came up for hearing, the arguments on behalf of the appellants through the learned counsel, inter alia, made which can be summarised as follows:- i. The impugned goods have been imported by the appellants even prior to the insertion of Chapter Note e in Chapter 26 of the Central Excise Tariff vide Finance Act, 2011. For such earlier imports, the procedure followed by the customs authorities was that the sample would be taken of the imported goods and sent to Department of Geology, Andhra Pradesh University for ascertaining whether the goods are ores or concentrate. However this practice was not followed subsequent to the insertion of the said chapter note. ii. What was imported by them was only Manganese ore which has been certified even by the foreign suppliers. iii. The benefit of exemption to additional duty of customs has been effected without any test conducted on the impugned goods to determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... centrate, a mere presumption like this cannot take its place. x. On the other hand, in the orders of the original authority which have been upheld by the impugned orders appealed against, the original authority has even taken a view that there is no for chemical test or analysis. Learned advocate Shri Vijayakumar takes us to appeal No. C/20401/2015 filed by M/s. Jagdamba Iron Steel Pvt. Ltd. wherein at para 12 of the original authoritys order, it has been stated Hence testing of the goods after importation and declaration as ore on the basis of any chemical test or analysis do not give any indication in the instant issue and such test/analysis is of no use. Similar view has been expressed in all these cases by the original authority. xi. If the Department takes a view that the impugned goods are concentrates and not ores, it is for them to prove the same, the burden of proof will be on them. 4. On the other hand, learned ARs Shri Madhusudan Reddy and Shri Nagaraj Naik vehemently oppose the appeals and supports the impugned orders and made oral submissions which can be summarised as under:- i. Ores and concentrates are two different and distinct items. ii. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reproduce the same:- Sl. No. Chapter or heading or sub-heading or tariff item of the First Schedule Description of excisable goods Rate Condition No. 4 2601 to 2617 Ores NIL -- It can be seen from the above reproduced notification that the said notification exempts ores falling under chapter heading No.26.01 to 26.17 from payment of any additional customs duty. 8. In the entire bunch of cases, the goods which were imported and presented before the customs authorities were declared as Manganese ore (46.5%) in all the individual cases. All the appellants, along with Bills of Entry, filed the relevant documents like certificate / report of the goods from an agency from load port; certificate of analysis at load port by recognised testing laboratories and the invoices of the said goods imported. On perusal of sample documents from each of the files, we notice that appellant had claimed the description of the product as manganese oreand indicating the percentage thereof evidencin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of import for assessment. We are unable to understand the action of the Revenue in not drawing the sample in order to ascertain whether the goods which were imported are Manganese ore or ore concentrate. In the absence of any corroborative and solid evidence, we hold that Revenue has not been able to discharge the burden of proof that the goods which are imported are nothing but concentrate. 10. Further it is noticed that both the lower authorities have relied upon the HSN explanatory notes to Chapter 26 which reads as under:- For the purposes of headings 26.01 to 26.17, the term concentrateapplies to ores which have had part or all of the foreign matter removed by special treatments, either because such foreign matter might hamper subsequent metallurgical operations or with a view to economical transport It can be seen from the above reproduced note, that concentrate term will apply to ore which have had part or all of the foreign matter removed by special treatments. In all these cases in hand, Revenue has not able to bring on record or state categorically that the Manganese ore which is imported by these appellants has undergone special treatmentsto hold the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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