TMI Blog2019 (12) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue regarding use of word usually at various places in the report of Professor at IIT, Bombay. It needs to be appreciated that Ore is naturally occurring substance and therefore cannot be any specific parameter for Ore . The composition of ore and contents of various materials in gold ore may vary from place to place and content to content. Therefore, the term usually appearing in the report of the Professor of IIT is not incorrect and we need to appreciate that variation in the proportions of contents is noticed in naturally occurring minerals from place to place. The quality of composition of Ores cannot be standardized as they are naturally occurring substances. Moreover the tariff/HSN does not prescribe any minimum or maximum limit in the definition of Ore . Even if the samples answered to all physical and chemical parameter of Ore , the same does not qualify to be ore for the purpose of the Tariff or the notification Confiscation - imposition of Redemption fine and penalty - HELD THAT:- The confiscation has been ordered under section 111(d) and (m) of the Customs Act 1962. Confiscation upheld - Redemption fine of ₹ 60 lakhs has been imposed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants have been importing goods with the said description of natural gold ore concentrate for some time. After fifteen consignments (one imported through Mumbai and not subject matter of this notice) of the said product having been cleared by Customs, the 16th consignment was stopped. The bill of entry No. 4434128 for the 16th consignment was submitted to Ahmedabad Customs for assessment. The goods were sought to be classified under Customs Tariff Heading 26169010 claiming basic Customs duty (BCD) at the rate 2.5% and nil CVD by virtue of Notification No. 12/2012-CE dated 17 March 2012 (Serial No. 56). All import documents like purchase orders, Dubai customs clearance declaration, packing list, testing report etc. were submitted with bill of entry. The said consignment was seized by Directorate of Revenue Intelligence (DRI) on the basis of intelligence to the effect that the appellants were importing by mis-declaring the goods as Natural Gold Ore Concentrate and wrongly claiming the benefit of notification. The goods were examined under Panchanama. Thereafter, statements of Shri Rohit Harishrao Jadav, Senior Executive of M/s. C.N. Gandevia Clearing and Forwarding Agent was rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and clarified that he had never seen the goods imported earlier. However, Shri Rohit Harishrao Jadav, Senior Executive of CHA, during cross-examination confirmed that he had seen the goods in the past; that Customs officers used to permit to opening of package for the purpose of control of samples for valuation by the government approved valuer. Shri Rohit Harishrao Jadav also stated that his observation that past imports were similar to the current import was based on physical appearance only and he cannot be 100 per cent certain in this regard. 2.2 Learned Counsel pointed that Revenue had relied on the report of Dr. George Mathew, Associate Professor at Indian Institute of Technology (IIT for short), Bombay. He pointed out that there were a lot of error in the report made by the Professor and for that purpose he relied on the record of the cross-examination of Dr. George Mathew. Learned Counsel pointed out that the demand, penalties and confiscation was upheld by the Commissioner despite the fact that they had pointed out various lacunas in the report of the Professor of IIT, Mumbai. In this background of facts, learned Counsel argued that the report of Dr Mathew t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was seized. He argued that the report of Professor IIT at best can be applied to bill of entry No. 4434128 only. He argued that in this background, attempt to reclassify the goods, covered in the past imports is illegal and without jurisdiction. 2.5 Learned Counsel pointed out that Revenue has heavily relied on WhatsApp messages recovered from the mobile phone of Shri Sanjay Patel. He argued that the said messages are not admissible as evidence and the messages do not establish that the partner of the appellant firm had instructed any person to prepare the goods for import in such a manner that they appeared like Natural Gold Ore Concentrates. Learned Counsel argued that there is no evidence showing that the instructions, advices appearing in the WhatsApp message were for the goods imported by the appellant and covered under bills of entry listed at Annexure-A to the show cause notice. He further argued that there is no evidence on record that advices and instructions allegedly given by Shri Sanjay Patel to Shri Sachin, the supplier abroad were actually carried out or implemented. He argued that mere presence of Whatsapp messages does not prove that supplier had actua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He argued that this definition indicates that any mineralogical specie actually used for extraction of metals including gold, is Ore as defined by the Parliament even though such goods were intended for non-metallurgical purposes. He pointed out that the goods in question have been imported for extracting gold there from and therefore, they are Ore as per Note 2 of Chapter 26 of the Customs Tariff. 2.9 He further pointed out that there is no violation of any nature committed by the appellant and there is no question of imposition of penalty. He also argued that penalty has been imposed on the firm as well as on the partner. He relied on the decision of Hon'ble Gujarat High Court in the case of Jaiprakash Motwani 2010 (258) ELT 204 (Guj.). He further argued that no penalty can be imposed on the firm as there was no malafide. Learned Counsel further argued that the penalty imposed is very high. He also argued that redemption fine of ₹ 60 Lakh is too high as the duty involved is only ₹ 18 Lakhs. 3. Learned Authorised Representative for the Department relied upon the impugned order. He took us through the show cause notice where the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal industry for the extraction of mercury, of the metals of heading 2844 or of the metals of Section XIV or XV, even if they are intended for non-metallurgical purposes. Headings 2601 to 2617 do not, however, include minerals which have been submitted to processes not normal to the metallurgical industry. From the above facts, it is seen that the appellants are claiming benefit of Notification No. 12/2012-CE and the notification exempts Ores falling under heading 2601 to 2617 from Central Excise duty. Note-2 of the Chapter 26 defines the scope of the term ore for the purpose of this chapter. This definition of ore as applicable to Chapter heading 2601 to 2617 is elaborated in the HSN notes in following words:- Headings 26.01 to 26.17 are limited to metallic ores and concentrates which: (A) Are of mineralogical species actually used in the metallurgical industry for the extraction of the metals of Section XIV or XV, of mercury or of the metals of heading 28.44, even if they are intended for non-metallurgical purposes, and (B) Have not been submitted to processes not normal to the metallurgical industry. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... http://kolibri.teacherinabox.org.au/ describes native metal as follows Any metal that is found in its metallic form, either pure or as an alloy, in nature. Website https://www.azomining.com/ describes native metal as Native metal is the uncombined form of metal that occurs in nature. It is the pure, metallic form that does not occur in combination with other elements. Native metals are either found as native deposits singly or as alloys. Dictionery.com defines Gangue as rock or mineral matter of no value occurring with the metallic ore in a vein or deposit. Merriam Webster dictionary defines Gangue as the worthless rock or vein matter in which valuable metals or minerals occur As per the definition, to be an ore the material has to qualify to the description minerals of mineralogical species . The term mineral has been defined in Wikipedia is A mineral is, broadly speaking, a solid chemical compound that occurs naturally in pure form. Then, the Encyclopedia Britanica defines mineral as follow:- 1. Form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... naturally occurring material can qualify as ore . The artificially made substances cannot therefore be called as Ore in terms of the definition of the term Ore appearing in the Chapter notes and explanations in HSN. 4.4 Goods do not answer to the term Concentrate The goods imported by the appellant were produced in a workshop by mixing sand and gold and various materials cannot be called concentrate. As per HSN explanatory notes the term concentrate applies only to ores which have had part or all of the foreign matter removed .. . Thus only goods derived from ores can be called concentrate. It is seen that Revenue is seeking classification of the product under chapter 71 therefore is the correct classification of the product. In any case the goods do not fall under chapter heading 2601 to 2617 even under description of Concentrate . 5 Benefit of Notification . The heading 26169010 covers both Gold Ore and Concentrates. Thus it is seen that the tariff distinguishes between Ores and Concentrates. While the notification grants exemption to Ores falling under heading 2601 to 2617, it does not grant any exemption to Concentrates falling i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substances and create a product roughly answering to the physical/chemical description of Ore . The messages exchanged during 13 November 2013 to 14 November 2014 shows that Shri Sanjay Patel giving minute by minute instructions to Shri Sachin to prepare fake gold ore concentrate. The messages and the implications of the Messages were specifically admitted by Shri Sanjay Patel. No cross examination of Shri Sanjay Patel was sought nor was his statement retracted. During this period the appellants approached Hon High Court for cross examination of a few witnesses. But the statement of Sanjay Patel was not retracted except in the reply filed after the cross examination of all witnesses. The WhatsApp messages were recovered under a Panchnama from a mobile recovered under a Panchnama. The recovery of phone or messages was not challenged as the Panchnama was not challenged. Furthermore the WhatsApp messages are corroborated by the recovery of cost sheet from appellants premises as well as the action/documentation (as detailed in following paras) pursuant to the said messages as detailed in OIO. 5.4 The Show Cause notice gives the summary of the messages in following words : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in simultaneously to boil 3.2 kgs of fine sand in 1 litre of water and add water as is needed. At PK No. 6892 Shri Sanjay Patel advices Shri Sachin to use 100gms Caustic Soda if Sodium Silicate is not available. At PK No. 6900 to 6903 Shri Sanjay informs that the preparation would be very good and a Perfect Duplicate of the African original. At PK No.7006 to 7025 Shri Sanjay Patel instructs Shri Sachin to add slowly the grains/flakes and water (prepared as above at Para 39.2) to the wet soil base and keep stirring the same. At PK No.7230 Shri Sanjay informs the detailed break-up of the costing of the above preparation and its CIF value at Ahmedabad. As per this the above preparation containing 1 Kg gold of 995 purity has a CIF Ahmedabad value 26,98,317/-. Shri Sachin of M/s. Gstar Jewellers LLC, Dubai informs Shri Sanjay Patel at PK No. 7475 that Customs (Dubai) would apply only (HS) Code 71081100. The said consignment was imported by M/s. MMZ through ACC, Ahmedabad by filing bill of entry No.3820322 dated 16/11/2013 wherein the goods were declared to be Natural Gold Ore Concentrate and claiming classification under CTH 26169010. The import under the said bill of Entry No.3820322 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. 38.7 That the declared country of origin is also fake is evidenced from the message of Shri Sanjay Patel at PK No, 10439 and 10440 wherein he informs his Dubai counterpart that editng of Ghana, West Africa is remaining in the documents and that they mention Ethiopia. 5.5 After examining the messages the impugned order gives following findings on the issue of corroboration :- 20.3 From the Whatsapp messages exchanged between Sanjay Patel and Shri Sachin the following emerges: i) In the messages exchanged on 09.11.13 (PK 5806 onwards) it appears that some proforma invoice was sent by Sachin to Sanjay Patel for his approval. Certain corrections were suggested by him such as writing some details in capital words and keep proper space above name for signature on the proforma invoice. ii) It also appears that images of some material were forwarded by Sachin to Sanjay Patel and he in turn tells that the finish of the material was too smooth and it should be of natural form (matt finish). iii) On 10.11.2013 the messages (PK 5816 to 6016) are relating to fixing the price of the gold Sanjay Pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cadmium. He asks for the preparation of the mixture. 21.4 At one stage Sachin informs that the temperature is 856 and that he has already mixed Zinc and Copper with the gold (PK 6616) that he will mix cadmium before 900 and thereafter silver after 990 and at 1000 gold. 21.5 Sanjay Patel informs Sachin to keep the ko1ater ready and gives him directions regarding safety measure to be taken for pouring this mixture in the water. Sachin informs that the size of the final mixture is about the size of gram (chana). He sends image of the gold flakes. To get an idea of real size Sanjay asks Sachin to put a scale, pencil or pen and send image back to him, which he does.(PK 6709 to 6727) Further Sanjay informs that small and medium size flakes will be acceptable. The larger size being very small in quantity, they should be able to manage at this time. (PK 6736) Preparation of soil mixture. (message No. PK 6802) 21.6 Sachin informs Sanjay Patel that the soil with him is little bit sandy and slips out of hand. Then he tells that he will use the finest sieve which will be as fine as to sieve Maida floor. Sachin asks him an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kes for Kaloti certification. Sanjay Patel, on the basis of his own calculations informs Sachin that the purity of this gold flakes would be 74.5%. Documentation. 21.11 Another set of message exchanged is regarding the origin to be mentioned on the invoice pertaining to the consignment to be imported. Sanjay Patel suggests that it should be either Ethiopian or African origin to which Sachin informs that he will write Ethiopia . Yet another set of WhatsApp message reveal that Sanjay Patel directs Sachin to mention CTH 2616.90. Then he tells Sachin that duty under this heading is lower as compared to CTH 70 and 71081, which is 10%.(message no. P1K 6445 onwards) Besides, Shri Sanjay has also explained that the import under CTH 7108 was regulated by RBI and that they wanted to clear the goods @ 2.5% and the same can happen only if this one proves to be 26169010 . (PK 6562 to 6572) Calculation Sheet: 21.12 Sanjay Patel has also forwarded the calculation sheet of the total expense of preparing this mixture which includes elements towards expense on gold, forwarding through Trans Guard Express, insurance and Kaloti test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, 7089, 7101, 7230, etc. iv) In the messages at PK 6857, 6860 it was insisted that country of origin to be written as Ethiopia . In the invoice and aforesaid B/E the country of origin is also Ethiopia v) the goods were described as Natural Gold Ore ras under CTH 26159010 in the B/E. I find the same as very much in line with the messages at PK 6445, 6541, 6546, 6550, 6560, 6566, 6572,ec. whereby Shri Sanjay Patel had insisted to Shri Sachin to mention so; vi) The purity of goods as per Kaloti report conveyed through the message PK 6823 and 6826 was 74.5% whereas in the packing list dated 14.11.2013 of M/s GStar and furnished alongwith the aforesaid BE the purity mentioned was 74.51% and subsequently Shri Kartikey Vasanthbhaj Soni in his report dated 20.11.2013 had also confirmed the purity as 17.9 Kt. (74.9%); vii) the said consignment was shipped via Emirates Airlines through M/s Transguard and the same were mentioned in the messages at PK 6124, 6296, 6205,6497,6798, 7230, etc. 21.17 Therefore, it is clearly established that the aforesaid messages were exchanged between Shri Sanjay Patel and Shri Sachin of G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hipment and further instructed the method of mixing geru+cement+water and its ratio and also to ensure that the gold purity is fixed at 75% approximately, so that the gold value would also be fixed; that thereafter he could steadily increase the quantity and could solve the problems on his own without calling Shri Sanjay Patel again and again (PK 8385 to 8390). 22.3 While referring to messages dated 17.11.2013 onwards, I find that Shri Sachin had started the preparation of goods for next consignment; that upon seeing the images, Shri Sanjay Patel asked him to pour 25 ml water more in the small vessel and prepare the paste and also advised him to follow the instructions strictly. In between they had exchanged certain images as well. For evaporation, he had given option of different method viz., focus bulb of 100-200V, fan, keeping outside if it is sunny day or use of vacuum. To a suggestion, Shri Sanjay Patel told that since the hair drier was instantly available, it could be tried and he appreciated7or giving such idea (PK 8926). Further, while observing the images, Shri Sanjay Patel had advised to observe the changes after giving mild heat through gas burner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the material content, otherwise difficulties would arise at Customs. It was further informed that they should keep the total weight at 6200gms. instead of 6.250 kgs. but purity would remain 75.94% i.e. 18.23 Kt. Subsequently, they had exchanged the images of packing list, export covering letter, commercial invoice, etc. Shri Sachin had further informed that total metal weight was 2620 gms. Therefore, upon calculating the same, Shri Sanjay Patel informed that total purity would become 7.68kt. On 03.12.2013, Shri Sanjay Patel informed that he had mailed the documents and the import file was getting ready at. CHA s Office and was waiting for airw bill. In the midnight of 03/04.12.2013, it was confirmed that the goods have been cleared by Dubai Customs and the Transguard would deliver Airway Bill in the morning. On 06.12.2013 it was informed that the goods have been released and the same reached Indore. Corroboration of consignment No.4 with above WhatsApp messages: 22.5 At this juncture, I would like to refer the Bill of Entry No 3986187 dated 04.12.2013 appearing at Sl. No 4 of Annexure to the SCN and find that the description mentioned ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eared by him declaring it under 0TH 26169010. While referring to the Annexure A Sl.No.2 of SCN, I find that M/s MMZ had cleared a consignment of 2500 gms. of Gold Ore Concentrate vide Bill of Entry No.3330689 dated 20.09.20 13 through Air Cargo Complex, Ahmedabad. The same was corroborated with the admission of different witnesses in their respective statements. It is pertinent to mention here that none of them retracted their statements and therefore, the same can be corroborated with each other and accordingly substantiate the allegations made in the SCN. Therefore, it is established beyond doubt that M/s MMZ had misdeclared the aforesaid consignment of 2500 gms gold appearing at sl. No. 2 of the Annexure to the SCN and evaded payment of higher rate of duty and also violated the RBI regulations. Similar i the case of consignment appearing at sl. No. 1 covered under Bill of Entry No. 2723043 dated 16.07.20 13. Besides, Shri Sanjay Patel in his statement dated 28/29.01.2014 had also specifically stated the import of two consignments in the months of July, 2013 and September, 2013 from Shri Hardik Patel of M/s. Shreeman Diamond and Jewellery PiE at Dubai by declaring it as Gold or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old was available with Sachin, clearly indicates that this consignment was also prepared in similar fashion as consignment no. 3 and 4. Consignment no. 6 - B/E No. 4137896 dated 20. 12.2013 24.4 In messages dated 15.12.2013, it is mentioned that for getting 4 kgs. of pure gold, the consignment should be of about 11 to 12 kgs.(PK 14299 to 14302). Further an amount of USD 75,000 was transferred to Sachin on 16.12.13, which is duly acknowledged by him. Sanjay Patel also asks Sachin to confirm to the bank that he was to get USD161144 towards the export business and show the swift copy so that bank would release the payment. Certain documents are approved by Sanjay Patel after making changes on 18.12.13. On 18.12.13, In WhatsApp message PK 14776, Sachin informs Sanjay Patel that process on material is still going on. These details match with consignment no. 6, covered by B/E No. 4137896 dated 20.12.2013. This B/E has been filed on 20.12.13 and quantity declared is 11.875 kgs., which is between 11 to 12 kgs. as mentioned in the messages. Further, corresponding invoice no. MMZ/GSJ/CI-04 dated 18.12.2013 clearly indicates receipt of an advance payment of USD 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cement + color = $ 2 2 8 RedSoil=$28 28 9 Total of Above=$ 126616 Gross 127340 10 Exporters Commission (0.5% of above) $ 633 637 11 Total = = $ 1272249 127977 12 Insurance (Door to Airport) = $ 19 19 13 Grand Total = 127268 $ 127996 14 Rounded to = $ 127270 / 9,555 gms Ores Concentrates 128000 The said cost sheet shows the various materials that go into preparation of the fake gold ore. It was recovered from the appellants premises. This sheet clearly shows that fake gold o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggets posses a regular shape rather than highly irregular or varied shapes ranging from pear, round, elongated, flat and dendritic etc. Careful observation of the plate-1 of the present sample reveal that gold metals are mostly bulbed, tear drop or highly irregular very sharp edged, or elongated needle shaped features. The tear and bulbed shaped nuggets clearly show sharp pointed features indicating extracting out from melted concentrate, as high specific gravity of gold develops into tear drop with sharp pointed end on opposite side. Sharp pointed features are never observed in Natural Gold Nuggets. (II) Soil Analysis (A) The soil along with gold metals seems to be bind together using some cement. The type of cement used is not very clear at present. (B) The chemical analysis and X-ray diffraction do not show presence of sulphide or arsenic minerals or oxide of these elements as they are commonly associated with gold. (C) Surprising the present soil sample show absence of any clay minerals less that A dspacing. The soil seemed to have been partially heated or baked. During the cross-examination of Shri George M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel argued that the report of Shri George Mathew cannot be relied on as Shri Mathew is not expert of gold. He relied on question No. 5 of the cross-examination which indicates that Shri Mathew has research in minerals and not in gold. We do not find any merit in the argument of the learned counsel as the term Mineral covers gold ores also. Gold is a metal and gold ore is a mineral. 6.3 Learned Counsel also seeks to draw support from the fact that chemical examination was not done personally by the Professor but by the technical Superintendent. It is not necessary for the Professor to do the actual lab work by himself. He is only required to interpret the result of the tests done in the labs. Thus, we do not find merit in the argument of the learned Counsel to do lab test personally and discredit the report in any manner. 6.4 Learned counsel has produced evidence before the Professor which indicate that gold content in native gold is 70% to 90% to which the professor has agreed. This would indicate that the report of the Professor that Native gold usually contains more than 90% Au is discredited. In the cross-examination he has agreed that Au content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cavities/pits and regarding the smoothness of surface has not been challenged. Learned Counsel has pointed out the use of word usually in the report and it would indicate that such smoothness of surface can be found in the naturally obtained substance also. The report/result of report is as follows:- 1. Chemical Analysis of Gold Metal: The chemical analysis as shown in the table indicates that the gold metal contains 79 % Au, 17% CU and 0.11% Ag. This composition of the gold alloy indicates it to be 18 carat gold variety. About -1.6 wt% are non-soluble residues. 2. Gold metal morphology - A real gold nugget has a wax-like yellow color, however, the present samples do not show waixy luster and show brighter yellow with pale pinkish shade (plate I) . - Natural gold nuggets typically contain plenty of quartz and other mineral and dirt trapped within. Real gold nugget usually posses pitted surface and signs of abrasive polishing. If the nugget is man-made from melted scrap gold pits and larger craters are usually not seen and the surface would appear smooth with no pits/craters. The present sample of gold metal d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bservation the sample given for analysis is not NATURALLY OCCURING. It contains man-made 18 carat GOLD NUGGETS mixed in red soil in the form of lumps. Presence of the cement variety is not detected. However, the use of some form of cement is not ruled out. The soil is reddish brown coloured soil, however, it cannot be concluded whether it is the Red-Indian soil (GERU). Natural native gold nuggets usually have 90 wt% Au. Presence of ~18% Cu in the sample seems to have been added or 18 carat gold or gold jewellery has been melted produce gold nuggets to show it as gold ore placer deposits. It is seen that in the above report of IIT Professor clearly states that Sharp pointed features are never observed in Natural Gold Nuggets. He has also pointed out that gold metal are bulbed, tear drop or highly irregular very sharp edged, or elongated needle shaped features. He also observed that the tear and bulbed shaped nuggets clearly shows sharp pointed features indicating extracted out from melted concentrate as high specific gravity of gold develops into tear drop with sharp pointed end on opposite side. This observation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on proper scrutiny and verification, irrelevance of WhatsApp messages and thus, wrong invocation of longer period of limitation in these proceedings. 8.1 We find that the WhatsApp messages clearly show that the previous consignments were produced in the workshop. It has been corroborated by the detailed analysis in the impugned order. It has also been corroborated by the recovery of document from appellants premises and also from the sample tested. The appellants had contended that the assessment of previous consignments was done after drawl of sample and therefore the assessment cannot be reopened by issue of this notice. While there is no clear evidence of drawl of samples in earlier consignments, we find that the same will not have any impact on the present proceedings. Samples may be drawn for testing or valuation. The actual composition of the sample has no relevance to the facts of the present case. Even if the samples answered to all physical and chemical parameter of Ore , the same does not qualify to be ore for the purpose of the Tariff or the notification . As provided in HSN/Chapter notes and as discussed in Para 5 above, unless the material is of natu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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