TMI Blog2023 (8) TMI 1242X X X X Extracts X X X X X X X X Extracts X X X X ..... these cases laws had not been pressed in arguments countering the challenge mounted in M/S AMBA RIVER COKE LTD. VERSUS PRINCIPAL COMMISSIONER OF CUSTOMS (PREVENTIVE) , MUMBAI [ 2022 (6) TMI 217 - CESTAT MUMBAI] ; had those been urged but not considered, appropriate recourse should have been had to section 129B(2) of Customs Act, 1962. In the absence of such, the plea of non-consideration of judicial decisions as justification at this stage for discard of the decision of the Tribunal in re Amba River Coke Ltd is not tenable. Revenue has not been able to substantiate its plea for urging a contrary stand on classification of the impugned goods or to entertain any impediment in following judicial precedent that has determined classification of goods impugned in the appeal. With the classification, as originally declared, being affirmed, the proceedings against the individual also does not sustain - Appeal allowed. - MR C J MATHEW, MEMBER (TECHNICAL) AND MR AJAY SHARMA, MEMBER (JUDICIAL) Shri Vipin Jain and Shri Ramnath Prabhu, Advocates for the appellants Shri S K Mathur, Special Counsel for the respondent ORDER The issue in these appeals of M/s JSW Steel Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended for Ores, slag and ash , goods other than ores are placed in heading 2618, 2619, 2620 and 2621 of schedule to Central Excise Tariff Act, 1985. This dispute is thus restricted to heading 2601 and the resolution thereof to determination of any restrictive interpretation of ore for exclusion from coverage of the impugned notification; for the denial of exemption is traced in the impugned order to shifting of appropriate classification to iron ore concentrate corresponding to tariff item 2601 11 50 of schedule to Central Excise Tariff Act, 1985. Impliedly, a distinction has been drawn between ore (as set out in the impugned notification) of iron and concentrate of iron which, along with ores of iron constitutes the totality of description at the heading level and specifically including roasted iron pyrites within it even as it is segregated at sub-heading level. In the enumeration, therefore, there is no controversy that, till the sub-heading level, the claims of both sides do not diverge. The issue is thus all about ores intended as benefitting from nil duty in the notification to the extent of not being concentrates - an en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompass identical facts, even deferment of decision merely on enumeration of grounds adduced in statutory appeal preferred under section 130E of Customs Act, 1962 is tantamount to acceptance of that plea. However, as the arguments had been preferred before us, we set them out for the record and without prejudice. 5. According to Learned Special Counsel, the finding by the adjudicating authority that a plain reading of the entry in the impugned notification coupled with clarification dated 23rd March 2012 of Central Board of Excise Customs (CBEC as it then was) suffices to exclude concentrate from benefit of exemption intended only for ores had not been appreciated by the Tribunal. It was further contended by him that the Tribunal had failed to appreciate the finding that the contextual relevance of insertion, by Finance Act, 2011, of note 4 in chapter 26 of schedule to Central Excise Tariff Act, 1985 requiring positive evidence of eligibility to claim the impugned goods as ores and not concentrates from the importers not having been discharged by them warranted denial of exemption. He argued that the Tribunal had also failed to appreciate the appropriateness of the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . That the notification was not intended to include concentrates which are concatenated with ores at the heading and sub-heading level has not been contextually ascertained with reasoned justification in the impugned order; instead there is an unconnected linkage that has been presumed by the adjudicating authority. 8. The decision of the Tribunal has, after examining the relevant chapter, including the notes, as well as the clarification of Central Board of Excise Customs (CBEC) along with yet another clarification, concluded that such distinction is not evident in the notification. It was held that 19. It would be seen that the main controversy that has arisen for determination in this appeal is as to whether the product that has been imported by the appellant is Iron Ore (fines) or Iron Ore (concentrate). Concentrate has neither been defined in the Notes to Chapter 26 of the Tariff Act nor in the notification dated 17-3-2012. HSN also does not provide a separate classification for ore that is concentrated or otherwise. In fact, it is only in Chapter Note 4 to the Central Excise Tariff Act, 1985 that a distinction is sought to be drawn between ore and concentrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-TRU, dated 17 Feb., 2012 Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New Delhi Subject : Dutiability of iron ore and iron ore concentrates - Clarification regarding. A reference has been received from Bhuwaneswar Zone seeking clarification on the issue of whether Iron ore lumps and fines are dutiable as concentrates when subjected to crushing, screening, sizing or washing etc. 2. In Budget, 2011, a Note was inserted in Chapter 26 of the First Schedule to the Central Excise Tariff to deem the process of converting Ores into Concentrates as a process amounting to manufacture. Both ores and concentrates are classifiable under Chapter 26 and while the term Ore is defined in Note 2 of the said chapter, the term concentrate is not. HSN Explanatory Note spell out the scope of the term Concentrate as under : For the purposes of Headings 2601-2617, the term concentrates applies to ores which have had part or all of the foreign matter removed by special treatments either because such foreign matter may hamper subsequent metallurgical operations or with a view to economical tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al have categorically asserted that the mined ore at Carajas, Para, Brazil underwent two preparatory processes mainly crushing and screening at Carajas, Para, Brazil, before shipment of the same. It is evident from the aforesaid pictorial representation of the stage-wise extraction process of Iron Ores, that there are total of 11 stages involved from the extraction of the ore from the Carajas Mine to its shipment from Brazil. These sequential stages are titled in the pictorial representation as Infrastructure, Extraction, Transport, Crushing, Conveyor Belt, Screening, Stockyard, Recovery, Loading, Rotary car dumpers and Shipment. Out of these 11 stages, only 2 stages deal with physically preparing the ore for shipment, which are crushing and screening. In the process of crushing, the ore which has been mined and is in the shape of a boulder/uneven blocks of upto 15 meters, is crushed using a primary crusher into smaller size. The webpage further reads that the ore may pass through the crusher upto three times. The crushed ore is thereafter carried in a conveyor over 85 km., where it is screened. The pictorial representation records that Vale has 17 production lines at its screening ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the other hand, the website records that the Iron ore extracted at Carajas is rich iron ore and dry processing is undertaken. The Vale website does not admit use of any water for processing or that there was any removal of part or whole of the gangue from the iron ore. The website of Vale, as has been relied upon by the Department, itself shows that from 2008 onwards it only undertakes dry processing. and we notice a specific finding thereupon, on the second issue flagged by Learned Special Counsel, thus 28. It is an undisputed position, as is also claimed by CBIC, that mere crushing and screening of ore, does not result in removal of part or whole of a foreign matter and that Iron Ore, which has been subjected to crushing and screening cannot be said to have been concentrated, by the removal of gangue i.e., the foreign matter from the ore. It needs to be noticed that both, the show cause notice and the impugned order, have in passing, contended that processes, beyond crushing and screening, have been undertaken on the Iron Ore at Carajas, Para, Brazil. However, no evidence has been led to even suggest, let alone prove, that other processing had taken place at Caraj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal properties peculiar to iron ore fines imported by the appellant therein and which is identical to the goods impugned in this appeal. Any bolstering that the adjudicating authority considered necessary to support his finding on facts were not only not directly in relation to the controversy over the rival classifications but also not pertaining to imported goods as presented for assessment. Moreover, it is seen from the order of the Tribunal that relevance of these cases laws had not been pressed in arguments countering the challenge mounted in re Amba River Coke Ltd; had those been urged but not considered, appropriate recourse should have been had to section 129B(2) of Customs Act, 1962. In the absence of such, the plea of non-consideration of judicial decisions as justification at this stage for discard of the decision of the Tribunal in re Amba River Coke Ltd is not tenable. 11. In the limited remit before us, Revenue has not been able to substantiate its plea for urging a contrary stand on classification of the impugned goods or to entertain any impediment in following judicial precedent that has determined classification of goods impugned in the appeal. With the clas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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