TMI Blog2020 (1) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... NDALCO INDUSTRIES LTD., COMMISSIONER OF CUSTOMS-AHMEDABAD VERSUS COMMISSIONER OF CUSTOMS-AHMEDABAD, HINDALCO INDUSTRIES LTD. [ 2015 (3) TMI 948 - CESTAT AHMEDABAD] has held that 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 the appellant, which ever is less, for allowing the benefit of Notification No. 24/2011-cus when final assay certificate is given by an agency other than the mining company. In view of the clear cut finding of tribunal approved by Hon ble Apex Court in COMMISSIONER VERSUS HINDALCO INDUSTRIES LTD. [ 2016 (3) TMI 1038 - SC ORDER] , it cannot be said that the Notification can be denied j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Silver contained in such Copper Concentrate. He said exemption is subject to the condition that an Assay Certificate from the Mining Company specifying separately the value of Gold and Silver content of such Copper Concentrate is produced. Learned Counsel pointed out that at the time of import Provisional assessment is done under Section 18 of the Customs Act pending production of final original documents, LME Price and the Test Results to ascertain quantity of Copper, Gold Silver contained in the imported goods. He pointed out that in the instant case the imported Copper Concentrate was cleared on payment of duty based on the Provisional Invoice of the foreign supplier. The appellant received the final invoice from the foreign supplier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of Notification No. 24/2011-Cus. In a decision in their own case reported in 2015 329 E.L.T. 395 (Tri.-Ahmedabad). It was held that exemption under Notification No. 24/2011-Cus was available even on basis of provisional assessment of Mining Company. He also pointed out that the said decision was upheld by Hon ble Apex Court vide Order dated 31.8.2015 reported in 2016 331 E.L.T. A38 (S.C.). Learned Counsel also relied on the decision of Tribunal in case of Edelweis Metals Limited 2019 366 E.L.T. (539). 03. The Learned Authorized Representative relied on the impugned order. 04. We have gone through rival submissions, we find that the issue in dispute is if the appellants are entitled to benefit of Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as observed as follows; 6. Notification No. 24/2011-Cus., dated 1-3-2011 does not contemplate an option to be given by an importer to either stick to provisional assay certificate percentage or final assay report. However, it is correctly pointed out by learned AR that Notification No. 24/2011-Cus. only talks of an assay certificate from the mining company to specify separately the contents of silver gold. There is no objection by the department for accepting final assay certificate when imports are directly from the mining company when final assay certificate of the mining company is accepted both for finalising provisional assessments and for allowing exemption under Notification No. 24/2011-Cus. However, it will be un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself on the ground that the said certificate does not contain the Customer no. and Sales Order No. The said issue has not been dealt with by the First Appellate Authority. 07. Thus, the impugned Order is set aside and matter is remanded to First Appellate Authority to examine if the provisional assay certificate produced by the appellant relates to the disputed consignment. If it is found to be the same, then assessment may be done in terms of the Tribunal Order in the appellants case reported in 2015 329 E.L.T. 395 as approved by the Hon ble Apex Court as reported in 2016 331 E.L.T. A38 (S.C.). 08. Appeal is allowed by way of remand. (Pronounced in the open court on 16.12.2019) - - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
