2015 (12) TMI 1389 - AT - Customs

Tribunal clarifies coal classification for customs duty exemption under Notification No. 21/2002, rejects retrospective criteria.

The Tribunal allowed the additional evidence but clarified its limited relevance. It determined the imported coal as weakly coking coal eligible for ... Whether the coals imported by M/s. JSW Steel Ltd (JSWSL for short), the appellant, i.e. for use in Corex Furnace and declared as weakly Coking/Soft Coking/Semi Soft Coking/Corex Coal are 'Coking Coal' classifiable under tariff item 27011910 of the Customs Tariff Act and eligible for exemption from payment of customs duty under Sl. No. 68 to notification No. 21/2002-Customs dated 1.3.2002 or these were in fact thermal coal/ Steam Coal classifiable under tariff items 27011920 and 27011990 leviable to Customs duty @5% Adv - Held that:- The issue is covered by the judgment of the Tribunal in their own case, reported in [2013 (1) TMI 301 - CESTAT, CHENNAI], wherein it was held that the exemption to coking coal under S. No. 68/68A of Notification NO. 21/2002-Cus would also be available to coal 'suitable' for use in admixture with other coal for making coke. It was held that the mere adoption of a new technology enabling the use of coal without first converting the same into coke in admixture with other coal cannot be a ground for denying the benefit of the exemption. It was further held that the criteria regarding 1 CSN and 0.60 MMR, which were introduced in the Notification granting exemption to coking coal with effect from 1.3.2011, cannot be given retrospective effect. - coking coal imported by the appellant for its Corex Plant had weak caking properties with CSN of more than 1 and less than 3 clearly comes out from the statements of Shri AVRP Dasu, General Manager - 4MT (Iron Making) dated 19.9.2011 and of Shri B.M. Reddy, Deputy General Manager - 10MT (Iron Making - Quality Management Centre) dated 29.9.2011. The evidence resumed show that before approving the use of any soft/semi-soft/weakly coking coal from a particular mine, the same was first type-tested for its suitability for use in the Corex process. During the course of investigations, the hard disk of Shri Arvind Rajagopalan (GM Commercial) had been seized and sent to the Central Forensic Science Laboratory, Hyderabad. From the said seized hard disk record, a report dated 29.5.2008 tabulates the CSN of the various coals, being used in the Corex process from the various mines, to be between 1 to 1.5 The exemption to coking coal was not linked to any particular end-use and that any coal which fulfilled the criteria of being a coking coal was eligible for the benefit of exemption. It is settled law laid down in the following judgments that where a notification contemplates an end use, the Central Government has to necessarily provide for a mechanism to monitor the said end-use. - it would be useful to refer to some of the technical literature on the characterization and categorization of various kinds of coal. From the IS standards 770-1977, we find that in Table 2 of the standards, the bituminous coal is classified into categories such non-caking, weakly caking, medium to strongly caking, weakly to medium caking, strongly caking. And further in comparison with the IS standards 1353:1993 we note that the weakly caking, medium to strongly caking and weakly to medium caking categories have a CSN number which is greater than 1 whereas non-caking has a CSN less than 1. In the remarks column in table 2, against strongly caking coal, the purpose of utilization is 'metallurgical Coke making'. According to learned Spl counsel only such coal can be considered as coking coal. However we notice that against the weakly/medium caking coal varieties, the purpose of utilization is written as 'blending'. This indicates that such coal can be used for blending with the strongly caking coal for steel making. An interesting aspect is that the appellant in one case of import at Goa, which is not related to the imports in the present case, requested for retest of samples in which the chemical Examiner at Goa found the CSN to be 1 in respect of four consignments. We are informed that on retesting the CSN of the same samples was found to be 5 to 5.5. The appellant requested for cross examination of the chemical Examiner. From the records of cross-examination, it transpired that the samples were not drawn in the manner prescribed in IS 436 not was the procedure for testing prescribed in IS 1353'1993 completely adhered to in as much as against three readings of CSN, only one reading of CSN was recorded. It has been held by the Hon'ble apex Court in the case of Tata Chemicals Ltd. It versus Commissioner [2015 (5) TMI 557 - SUPREME COURT] that if samples are drawn contrary to the provisions of law, the test reports cannot be relied upon. We realize that the testing does not pertain to the consignments in dispute. But having noted the difference in the results of internal tests by the appellant (not brought on record by revenue) and the testing in Govt Laboratory in the present case, the benefit of doubt must go to the appellants in view of our detailed findings from all angles. The onus was on Revenue in the preceding paras to disprove the appellant's own reports. Noting the totality of evidence in favour of the appellant, we do not agree with the findings of the Commissioner in confirming the demand of duty in respect of 21 bills of entry. - Impugned order is set aside - Decided in favor of assessee. Issues Involved:1. Admissibility of additional evidence.2. Classification of imported coal as 'Coking Coal' or 'Thermal Coal'.3. Eligibility for customs duty exemption under Notification No. 21/2002-Customs.4. Application of retrospective criteria for Crucible Swelling Number (CSN).5. Validity of test reports and procedural adherence.6. Confiscation and imposition of penalties.Issue-wise Detailed Analysis:1. Admissibility of Additional Evidence:The appellant sought to place additional evidence on record under Rule 41 of the CESTAT Procedure Rules 1982, arguing that the cross-examination of the Assistant Chemical Examiner was not allowed by the Commissioner. The Tribunal allowed the additional evidence, clarifying that these documents could only indicate procedures followed in drawing and testing samples but not form the basis for a decision in the present case.2. Classification of Imported Coal:The primary issue was whether the coal imported by the appellant, declared as weakly Coking/Soft Coking/Semi Soft Coking/Corex Coal, was 'Coking Coal' under tariff item 27011910 and eligible for exemption from customs duty, or if it was thermal coal classifiable under tariff items 27011920 and 27011990, subject to customs duty. The Tribunal examined various perspectives, including statutory and private documents, statements of company officials and suppliers, and technical literature. It was noted that the coal imported had weak coking properties with Crucible Swelling Number (CSN) values ranging from 1 to 1.5, indicating that it could be used for blending with other coal for making coke. The Tribunal concluded that the coal imported was indeed weakly coking coal, eligible for the exemption.3. Eligibility for Customs Duty Exemption:The appellant claimed exemption from customs duty under S. No. 68/68A of Notification No. 21/2002-Customs, which provided exemption for coking coal. The Tribunal observed that the exemption was not linked to any particular end-use and that any coal fulfilling the criteria of coking coal was eligible for the benefit. It was held that the adoption of new technology enabling the use of coal without converting it into coke could not be a ground for denying the exemption.4. Application of Retrospective Criteria for CSN:The Tribunal addressed the contention that the criteria of CSN introduced in the Notification from 1.3.2011 could not be applied retrospectively. It was noted that during the period of import, there was no explanation in the notification specifying the criteria for coking coal. The Tribunal held that the criteria introduced later could not be applied retrospectively, and the coal imported during the disputed period met the exemption criteria based on the existing definition.5. Validity of Test Reports and Procedural Adherence:The Tribunal considered the validity of test reports conducted by the Customs Chemical Laboratory, which indicated that the majority of the imported coal had CSN values of 1 or more, classifying it as weakly coking coal. The appellant's internal test reports, which were not initially furnished to the appellant, also showed CSN values of 1 or more. The Tribunal noted discrepancies in the testing procedures and emphasized that the burden was on Revenue to determine the Mean Max Reflectance (MMR) factor, which was not done. The Tribunal concluded that the test reports provided by the Customs Chemical Examiner were reliable and supported the classification of the coal as weakly coking.6. Confiscation and Imposition of Penalties:Given the Tribunal's findings that the coal imported by the appellant was weakly coking coal eligible for exemption, the demand for customs duty in respect of 21 bills of entry was set aside. Consequently, the question of confiscation and imposition of penalties did not arise. The Tribunal dismissed the Revenue's appeal and allowed the appellant's appeal with consequential relief.Conclusion:The Tribunal concluded that the coal imported by the appellant was weakly coking coal eligible for exemption under Notification No. 21/2002-Customs. The demands for customs duty were set aside, and the appeals were disposed of accordingly. The Tribunal emphasized that the exemption notification should be interpreted based on its plain wording, without imposing additional conditions not specified in the notification.