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TMI Blog2023 (3) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... Cr 21.03 20.99 Iron Fe 4.56 4.59 Molybdenum Mo 8.2 5.22 Carbon C 0.02 0.02 2.1 Chapter Note under chapter 75 for Nickel alloys reads as under : "Metallic substances in which nickel predominates by weight over each of the other elements provided that: i. The content by weight of cobalt exceeds 1.5%, ii. The content by weight of at least one of the other elements is greater than the limit specified in the foregoing table, or iii. The total content by weight of elements other than nickel plus cobalt exceeds 1 %." At the time of first assessment of the goods the Deputy Commissioner of Customs, Air Cargo Complex classified the goods under CTH 72189910 as billets of stainless steel on the ground that the content of cobalt didn't exceeds 1.5 %. He also relied on the definition of stainless steel appearing in Chapter 72 of the Customs Tariff Act. The issue was challenged before the Commissioner (Appeals) who vide order dated 12.12.2019 remanded the issue to re-examine the issue in the light of section notes, chapter note, definition of Ferro alloy stainless steel, Nickel alloys etc . The matter was again adjudicated by the Deputy Commissioner and the Deputy Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing expressions have the meanings hereby assigned to them: (a) Nickel, not alloyed Metal containing by weight at least 99% of nickel plus cobalt, provided that: (i)the Cobalt content by weight does not exceed 1.5% and (ii)the content by weight of any other element does not exceed the limit specified in the following table: TABLE- OTHER ELEMENTS Elements Limiting content %by weight Fe Iron 0.5 O Oxygen 0.4 Other elements , each 0.3 (b) Nickel alloys Metallic substances in which nickel predominates by weight over each of the other elements provided that: i. The content by weight of cobalt exceeds 1.5% ii. The content by weight of at least one of the other elements is greater than the limit specified in the foregoing table, or iii. The total content by weight of elements other than nickel plus cobalt exceeds 1 %" 2.3 He pointed out that the iron content in the consignment is approximately 4.5 % by weight and therefore the goods imported by them would not fall under the category of Nickel not alloyed as described in the sub heading note1 (a). He argued that the goods are correctly classifiable under the head of Nickel alloys as described under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d goods by the appellant was declared as Nickel billets, which was classified under CTH 75051220. Nickel Billets falls under this tariff entry, regarding which there is no dispute. As per the mill test certificate submitted by the appellant, the imported item was found to be composed of more than 60% of nickel and the rest other alloying elements. 4.1 We find that as per the Note 5 of Section XV, an alloy of a base metal has to be classified as an alloy of the metal which by weight predominates over total weight of other elements. In the present case the composition of iron is less than 5% and nickel is 62.26% which means that the nickel predominates over the content of iron and other elements. For this reason itself the goods in question would ordinarily be classifiable as nickel alloy. However, the contention of revenue is that the goods get excluded from this category by virtue of sub heading note 1 (b) (i). 4.2 Learned Counsel also placed reliance on the sub-heading notes and argued that the imported goods do not fall under the category of "nickel, not alloyed" prescribed under sub -heading 1 (a) of the Chapter note 75. We find that according to the Note 5 of Section XV , the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of all we find that there is no " and" appearing between sub heading note 1 (b) (i) and 1 (b) (ii) which itself indicates that it is not necessary to satisfy both the condition prescribed in sub heading note 1 (b) (i) and 1 (b) (ii).Learned counsel has rightly pointed that whenever two conditions have to be simultaneously satisfied the legislature has put the word "and" between those condition. He cited the example of note 3 and 4 of chapter 4 which is reads as follows:- "3. Products obtained by the concentration of whey and with the addition of milk or milkfat are to be classified as cheese in heading 0406 provided that they have the three following characteristics: (a) a milkfat content, by weight of the dry matter, of 5% or more; (b) a dry matter content, by weight, of at least 70% but not exceeding 85%; and (c) they are moulded or capable of being moulded. 4 This Chapter does not cover:- (a) products obtained from whey, containing by weight more than 95% lactose, expressed as anhydrous lactose calculated on the dry matter (heading 1702), (b) products obtained from milk by replacing one or more of its natural constituents (for example, butyric fats) by another subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-heading note 1 (b) (i) requires the content weight of cobalt to exceed 1.5%. The sub heading note 1 (b) (iii) requires the total content of nickel + cobalt to exceeds 1 %. If the subheading note 1 (b) (i) is held to be a necessary requirement then the sub heading note 1(b) (iii) becomes otiose in so far as if the alloy contains cobalt in excess of 1.5% then it will obviously satisfy the condition of Nickel + cobalt exceeding 1 % . In this background also it is seen that the sub heading note 1(b) (i), 1(b) (ii), 1(b) (iii) need not to be simultaneously satisfied for the purpose of classification of goods as nickel alloy. 4.7 From the above discussion it is apparent that satisfaction of heading note 1 (b) (i) is not necessary condition for anything to be classified as nickel alloy. Satisfaction of any of the three prescription namely sub heading note 1(b) (i), 1(b) (ii) or 1(b) (iii) is sufficient to classify the goods as nickel alloy. It is seen that in the instant case the composition of goods is as follows:- Elements Symbol Heat No. 343279 Heat No. 326692 Nickel Ni 62.15 62.26 Cobalt Co 0.02 0.01 Chromium Cr 21.03 20.99 Iron Fe 4.56 4.59 Molybdenum Mo 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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