TaxTMI 
TaxTMI 
2013 (1) TMI 301
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....31-3-2010 reporting that the goods were "other than coking coal" and report dated and 19-8-2010 reporting certain characteristics without a clear opinion whether the goods can be considered as "coking coal". The reports are reproduced below : Lab No.46/MGT/19-1-10 Report : "The sample is in the form of blackish lumps of irregular shapes and size with coarse powder. It has got the characteristics of coal. It is other than coking coal. Moisture (ADB) = 2.1% Air content (ADB) = 11.6% Actual use may be ascertained. Sealed remnant returned herewith."                         Signed on 31-3-2010 Lab No. 30 INGT/21-7-10 B/E No. 20 (KKL)/2010 dated 15-7-10 Report The sample is in K.C form block powder and small lumps. It has got the characteristics of coal having, the following determinations. Total Moisture (A.R.B) 7.8% Moisture (A.O.B) 2.4% Volatile matter (A.O.B) 14.2% Ash content (A.O.B) 9.4% C.S.N. 1 (omc) Fixed carbon 74.17 Coloric value more than 5833 K Cal/kg. Sealed remnan....
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....special coal boilers and that the coal has found substantial utilization in PCI blast furnace application. (ii) The importer vide their letter dated 17-5-2010 addressed to the Assistant Commissioner, Nagapattinam categorically stated that the coal imported by them was semi soft coking coal which is used in blast furnaces by pulverized coal injection (PCI) technology, along with coke as a blend, which replaces expensive coke. As this coal is substituted for coke in blast furnace, it should be treated at par with coking coal and hence no customs duty should be demanded. It is argued from this letter that it is clear that the goods imported were not coking coal per se. (iii) Their contract with the supplier namely CC Carbon Pvt. Ltd., Singapore was only for supply of "Jellinbah PCI coal" and not for supply of "coking coal". However, the respondent gave the description of the said coal as "semi- soft coking coal" in all the relevant records with the sole intention of claiming it as coking coal to evade customs duty by claiming exemption under Notification No. 21/2002-Cus., dated 1-3-2002. 6. He further argues that the report of Chemical Exami....
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....d the appellant is eligible for exemption under Notification No. 21/2002-Cus., dated 1-3-2002." to read as : "As the impugned imported goods are used in the Iron & Steel Industry without converting the same into coke and there is no statutory/technical definition for coking coal prior to 18-2-2011 the same has to be rightly classified under Customs Tariff Heading 2701 19 10 and the appellant is eligible for exemption under Notification No. 21/2002-Cus., dated 1-3-2002." 8.2 Similarly the sentence. "If the usage taking into consideration for determining the classification, there is no doubt that the importer is a manufacturer of Iron & Steel and the imported coal (after converting into coking coal) is used in the manufacturing process. The import coal cannot be used as such in the furnace." was corrected to read as : "If the usage is taken into consideration for determining the classification, there is no doubt that the importer is a manufacturer of Iron & Steel and the imported coal (coking coal) is used in the manufacturing process. The import coal cannot be used as such in the furnace." 9. It is the argument of the learned AR that the Commissioner (....
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.... Karnataka High Court in the case of JSW Steel Ltd. v. CCE - 2010 (254) E.L.T. 318. The respondent submit that they have earned carbon credit for the company using this new technology, thus demonstrating the superiority of the technology over the older Blast Furnace Technology. Under this technology also coal with required specification can be straightaway used in furnaces without converting it into coke. He argues that there is no case for denying exemption to coal used in a new technology in preference to coal used in old technology when the expression used is a broad expression without any specification. 14. He draws our attention to the following technical literature :- 14.1 The Customs Tariff in USA and Canada splits the entry for bituminous Coal into the two categories of Metallurgical Coal and Other type of Coal. Thermal coal is the most common of other type of coal. The tariff of Japan splits the entry into those containing not more than 8% of ash calculated on dry weight and other types. Under both types coking coal is listed, indicating in both types of coal, there can be coal suitable for coking. 14.2 He draws our attention to relevant literature ....
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.... air. During the heating in the range of 660 to 930 deg. F the coal softens and then fuses into a large extent the character of the coke produced. In order to produce coke, having desired properties, two or more coals are blended before charging into coke oven. In the modern technology, necessarily blending of various grades of coal is required in the coking process for optimization of the desired results in the steel industry." 15. His argument in short is that the coal imported was suitable for coking in admixture with other type of coal. Respondent had used the coal imported by them for extraction of metal and in the absence of clear definition of the expression 'coking coal', the expression has to be understood to mean coal that is used in metallurgy. 16. What we notice is that Revenue has not been very specific about the meaning of the expression "coking coal", though the expression has been in use by customs department for many years and there has been disputes and discussions as to the scope of the expression at various levels of government for quite some time. 17. It is accepted position that the goods imported were ideally suited to pulverized coal ....
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....l examiner has very limited value because such opinion is formed without hearing the party. The job of a Chemical Examiner does not involve hearing submissions of the affected party and giving detailed reasons for the finding. His job is mainly to bring technical literature on the disputed question to the notice of the authority and to ascertain scientific parameters by testing of the goods. The first report dated 19-1-2010 gives only an opinion without stating what is the parameter relevant for the decision. So a re-test of the sample was not relevant. Se we do not give much weight to the argument of Revenue that the Respondent did not get the samples retested. There was no re-test to be done of any scientific parameter ascertained by the Chemical Examiner through test conducted by him. The argument that they did not challenge the report is not correct because the challenge in such situation is to be done before the adjudicating authority and in further proceeding. The present appeal is in fact such a proceeding. So we do not find much merit in the argument of Revenue on that score. 21. We have also considered the contention of the Revenue that the Respondent misdecl....