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TMI Blog2023 (12) TMI 1441X X X X Extracts X X X X X X X X Extracts X X X X ..... ious metal chemicals and catalysts, precious metal gauzes, platinum laboratory apparatus, precious metal spinnerets, precious metal bushings and other precious metal products falling under Chapter 71 of the Central Excise Tariff, and for this purpose import "platinum sponge". The appellants have classified the imported goods described as 'Platinum Metal or Platinum Sponge' under Customs Tariff Item (CTI) 7110 11 10 as platinum in 'unwrought form' and claimed exemption from payment of whole of additional duty of customs (CVD) under Sl. No.25 of Notification No. 05/06-C.E. dated 01.03.2006 / Sr. No.193 of Notification No. 12/2012- C.E., dated 17.03.2012. However, the department had objected to such classification of imported goods and availment of exemption, by treating such goods as classifiable under CTI 7110 11 20 as platinum in "powder form" and thus contending that the imported goods are not eligible for the above exemption benefit. The dispute relates to imports made during the period from 15.10.2009 to 10.06.2014. 2.3 The appellants have contended that the imported platinum sponge is obtained by refining/recycling/recovering materials like spent catalysts, and other waste and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of imports. Therefore, they stated that the customs department had failed to discharge the burden while changing the classification of the imported goods under CTI 7110 11 20. [H.P.L Chemicals Vs. CCE -2006 (197) ELT 324 (SC).] 2.6 Learned Advocate also submitted that "platinum sponge" is the first form of platinum which emerges during the refining process. If that is so, then the suggestion that this first form of metal ('sponge') is not unfinished or semi-finished form of metal, whereas subsequent forms of metal obtained viz., ingots, bars, blocks, slabs, billets, shots, pellets, rods, sheets, foils and wire, etc., are considered to be "unfinished or semi- finished" from of metal, is totally incorrect and does not stand to logic. In fact, when sponge is considered to be primary form of metal, it necessarily implies that it is unfinished or semi-finished form of metal. 2.7 They further stated that Notifications No. 05/06-C.E. dated 01.03.2006 and No. 12/2012-C.E., dated 17.03.2012 had granted exemption to 'Silver, platinum, palladium, rhodium, iridium, osmium and ruthenium in their primary forms, that is to say, any unfinished or semi- finished form including ingots, bars, blo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33 in favour of the assessee and held that exemption from CVD is correctly available to the imported platinum sponge. In this regard, they also stated that the Show Cause Notice dated 25.07.14 issued to the appellants in the present case is verbatim similar to the SCN dated 29.04.2015 issued to the other importer (Johnson Matthey) in the above case. Hence, on the basis of the order passed by he Tribunal in the above case and considering that the basis for issue of both the SCNs being identical i.e., 'imported platinum sponge' is platinum in powder form, the adjudged demands in this case liable to be set aside. Further, they stated that department has not challenged the above decision in Johnson Matthey India's case and therefore, the same has attained finality and the present case cannot be decided in a different manner. 3. On the other hand, learned Authorised Representative for Revenue reiterated the findings of the adjudicating authority in the impugned order, and submitted that during the investigation itself, various officials of the appellants had clearly stated that the imported goods are in 'sponge' form and hence the imported goods are not eligible for subject exemption f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd other charges. (1) Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article : Provided that in case of any alcoholic liquor for human consumption imported into India, the Central Government may, by notification in the Official Gazette, specify the rate of additional duty having regard to the excise duty for the time being leviable on a like alcoholic liquor produced or manufactured in different States or, if a like alcoholic liquor is not produced or manufactured in any State, then, having regard to the excise duty which would be leviable for the time being in different States on the class or description of alcoholic liquor to which such imported alcoholic liquor belongs. Explanation. - In this sub-section, the expression "the excise duty for the time bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -heading Notes and, mutatis mutandis, to the above rules, on the understanding that only sub- headings at the same level are comparable. For the purposes of this rule the relative Section and Chapter Notes also apply, unless the context otherwise requires. THE GENERAL EXPLANATORY NOTES (GEN) TO IMPORT TARIFF 1. Where in column (2) of this Schedule, the description of an article or group of articles under a heading is preceded by "-", the said article or group of articles shall be taken to be a sub- classification of the article or group of articles covered by the said heading. Where, however, the description of an article or group of articles is preceded by "- -", the said article or group of articles shall be taken to be a sub-classification of the immediately preceding description of the article or group of articles which has "-". where the description of an article or group of articles is preceded by "---" or "----", the said article or group of articles shall be taken to be a sub-classification of the immediately preceding description of the article or group of articles which has "-" or "--". ..." 7. As the dispute in the present case mainly lie with the eligibility of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d valorem rates, unless otherwise specified. Table (1) (2) (3) (4) (5) S. No. Chapter or heading or subheading or tariff item of the First Schedule Description of excisable goods Rate Condition No. xx xx xxx xx xx 25 71 Silver, platinum, palladium, rhodium, iridium, osmium and ruthenium in their primary forms, that is to say, any unfinished or semi-finished form including ingots, bars, blocks, slabs, billets, shots, pellets, rods, sheets, foils and wires. Nil - xx xx xxx xx xx" "Notification No. 12/2012-C.E. dated Exemption and effective rates of duty for specified goods of Chapters 1 to 98 In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944) and in supersession of (i) notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 3/2005-Central Excise, dated the 24th February, 2005, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 95 (E), dated the 24th February, 2005, (ii) notification No. 3/2006-Central Excise, dated the 1st March, 2006, published in the Gazette of India, Extraordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red or not, that is to say, a name or a mark, such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to a product, for the purpose of indicating, or so as to indicate, a connection in the course of trade between the product and a person using such name or mark with or without any indication of the identity of that person. Table (1) (2) (3) (4) (5) S. No. Chapter or heading or subheading or tariff item of the First Schedule Description of excisable goods Rate Condition No. xx xx xxx xx xx 193 71 Platinum, palladium, rhodium, iridium, osmium and ruthenium in their primary forms, that is to say, any unfinished or semi-finished form including ingots, bars, blocks, slabs, billets, shots, pellets, rods, sheets, foils and wires. Nil - xx xx xxx xx xx" Further, sub-heading note No.1 to Chapter 71 of Customs Tariff as well as Central Excise Tariff, uniformly worded therein, is extracted and given below: "SUB-HEADING NOTES: 1. For the purposes of sub-headings 7106 10, 7108 11, 7110 11, 7110 21, 7110 31 and 7110 41, the expressions "powder" and "in powder form" mean products of which 90% or more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t legally sustainable. 8.3 The impugned order in denying the exemption benefit for the imports and in confirmation of the adjudged demands, have relied upon Rule 3C of GIR and the fact that 'powder form' is not the one of the forms specified in the aforesaid exemption notification. In this regard, we find that in a situation where the classification of the goods cannot be decided under rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, then rule 3 apply. Further, in respect of goods which are put up in sets for retail sale, when they cannot be classified based on rule 3(b) based on the essential character of the material or component which gives their essential character, then adoption of the heading that occurs last in numerical order, as per rule 3(c) is to be applied. In the present case, the dispute in classification is limited to two tariff items (TIs) within single sub-heading 711011, either under TI 7110 1110 or TI 7110 1120. Further, both the tariff items are specifically identifiable in the forms with which these goods are present or available, in unwrought form or in powder form. Therefore, we are of the considered opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available to precious metals and articles of precious metals such as ingots, bars, crucibles, foils, dishes, wires, wire gauges etc., under Sl. No. 193 or 194 of Notification No. 5/98-C.E., dated 2-6-1998. It has been represented that the benefit of exemption under Sl. No. 193 or 194 of Notification No. 5/98-C.E., dated 2-6-1998 is being denied on the ground that the above goods of precious metals when re-made, re-conditioned, re-fabricated etc., and used as catalysts, are subject to excise duty at the rate of 18% of the value of materials, if any added and the amount charged for such manufacture under Sl. No. 36 of the same notification. References have also been received from some field formations in this regard. 2. The matter has been examined. While articles of precious metals falling under Chapter 71 are subject to Nil rate of duty under Sl. No. 193, the precious metals in unfinished and semi-finished forms are subject to Nil rate of excise duty under Sl. No.194 of Notification No. 5/98-C.E., dated 2-6-1998. The above exemption is unconditional and is applicable to the said goods irrespective of whether they are manufactured first time or re-made, re-conditioned or re-fabri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law, have to follow the instructions issued under Section 37B of the Central Excise Act, 1944 and/or Section 151A of the Customs Act, 1962, for the purpose of uniformity in implementation of the law. Therefore, we are of the opinion, that a different view cannot be taken from the legal position of the exemption, as clarified in the circular issued by the CBEC. Accordingly, we find that the impugned order, insofar as it had denied the exemption benefit to the impugned goods of platinum, in the present case is not legally sustainable. 10.1 In this regard, we find that the present appeal was considered for early hearing and was allowed so, vide Miscellaneous Order No. M/85620/2023 dated 05.10.2023, on the ground that the issue in dispute is covered by the Final Order No, 85733/2023 of the Tribunal in the case of Additional Director General (Adjudication) Vs. Johnson Matthey India Pvt. Ltd. - 2023 (5) TMI 1133, which had been investigated simultaneously, but demand notices or SCN for recovery of duty has been issued separately for different parties. 10.2 In the above case of Johnson Matthey India Pvt. Ltd. (supra), the Co- ordinate Bench of the Tribunal had exhaustively dealt with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en extended unconditionally to all articles of such precious metals without any conditions. (Notification No. 39/94-C.E.). In view of the above, Notification Nos. 228/88, 53/86, 313/86 and 137/89 have been rescinded. (Notification No. 64/94-C.E)." 'NOTES EXPLAINING IMPORTANT CHANGES MADE IN EXCISE DUTY 31.1 Notification No. 39/94-CE is being rescinded (Notification No. 71/95-CE refers). However, the Nil rates for certain articles of precious metals, ornaments of gold or silver, strips, wires, etc. of silver and gold, imitation jewellery and precious and semi-precious stones, etc. are being continued (Notification No. 54/ 95-CB refers) 31.2 A doubt had arisen as to whether articles in relation to precious metals (other than gold) will include their unfinished or semi-finished form (including ingots, bars, blocks, slabs, billets, shots, pellets, rods, sheets, foils and wires). Board have vide letter no. 172/2/94-CX 4 dated the 5th July, 1994 clarified that exemption of notification no. 39/94-CE is available to all articles of precious metal including ingots etc. An Explanation is now being added to make the intention clear and to remove any doubts in the matter (Notification No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets, rods, sheets, foils and wires Nil 4.4 CBEC had issued Circular No. 431/64/98-CX dated 19/11/1998 clarifying the scope of entries in Notification No 05/1998-CE. The text of the Circular is reproduced below: "Subject: Catalysts of precious metals falling under Chapter 71 - scope of exemption in notification No. 05/98-C.E. I am directed to state that representations have been received from the trade, retarding the scope of exemption available to previous, metals and articles of precious metals such as ingots, bars, crucibles, foils, dishes, wires, wire gauges etc., under SI. No. 193 or 194 of Notification No. 05/98-C.E. dated 2.6.98. lt has been represented that the benefit of exemption under SI. no. 193 or 194 of Notification No. 05/98-CE dated 2.6.98 is being denied on the ground that the above goods of precious metals when remade, re-conditioned, re-fabricated etc., and used as catalysts, are subject to excise duty at the rate of 18% of the value of materials, if any added and the amount charged for such manufacture under SI. No. 36 of the same notification. References have also been received from some field formations in this regard. 2. The matter has been examined. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, any unfinished or semi-finished form including ingots, bars, blocks, slabs, billets, shots, pellets, rods, sheets, foils and wires. 4.6 The same entry continued till the supersession of Notification No 12/2012 dt 17.03.2012, till 30.06.2017, at the time of introduction of GST. The above clearly explains that from 1994 onwards the notification has been issued exempting the impugned goods and the wording 'used' in thenotification then till the notification under consideration remains the same. The Ministry itself was always of the view that exemption needs to be granted to the metal in the form it emerges during a refining process, whether from ore concentrate or recycled material, the same could not have been denied. From perusal of the entry, it is evident that exemption has been granted to all the forms which arise subsequent to the emergence of the form in which these goods are imported. In view of the above circular, the contentions raised by the Revenue which go contrary to the circular issued by the Board cannot be justified. 4.7 In case of Ratan Wire and Melting [2005 (3) SCC 57], a five judges bench of Hon'ble Supreme Court has stated the law in respect of the clarif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enied to him and there would be no scope for adjudication by the High Court or the Supreme Court. That would be against very concept of majesty of law declared by this Court and the binding effect in terms of Article 141 of the Constitution.' 4.8 Nothing has been brought forth in the appeal or during the arguments to show that there was any subsequent change in the wording of the Notification, or a pronouncement of Hon'ble Supreme Court or a Hon'ble High Court has come which goes contrary to the above clarification. 4.9 In absence, we do not find any merits in this appeal. 5.1 Appeal filed by revenue is dismissed. Cross objections disposed off." 11. In view of the foregoing discussions and analysis, we conclude that the impugned goods 'Platinum Metal or Platinum Sponge' under consideration imported by the appellants are correctly classifiable under tariff item 7110 11 10 as platinum in 'unwrought form' and are eligible for full exemption from Additional Duty of Customs (CVD) under Notifications No.05/06-C.E. dated 01.03.2006 (Sl. No.25) and No. 12/2012-C.E., dated 17.03.2012 (Sr. No.193), as amended. Therefore, we are of the considered view that the impugned order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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