TaxTMI 
TaxTMI 
TaxTMI 
2014 (6) TMI 85
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....venue examined the goods and found the same to be 'Niece' grade. The respondent vide its letter dated 22-1-2007 explained that the term 'Malic' was declared inadvertently by the CHA and the goods were actually nickel silver turnings, as found by the customs officers during the course of examination. However, the respondent drew attention of the officer to the fact that the goods stands described in the invoice, packing list as also in the bill of lading as Nickel Silver Turning. 3. It is seen that the goods were subsequently sent to CRCL for examination of the respondents' claim of benefit of Notification No. 21/2002 dated 21-3-2002. CRCL, vide its test report dated 2-2-2007 opined that 'The sample is in the form of a heterogeneous mixture of the turnings, shearing of different weight of length. It contains 60.6 by weight of copper, 13.90 by weight Nickel and rest being mainly Zinc. It does not answer test for Tin and Lead.' 4. On the above basis, the Revenue entertained a view that the benefit of notification is not available to the respondent, inasmuch as the goods cannot be held to be nickel or article of nickel. The value of the goods as declared by the respondent w....
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....im of classification under the above notification. He draws our attention to the finding of the Assistant Commissioner holding that as per examination report and CRCL, the goods are Nickel Silver Turning Niece. If that be so, he submits that benefit of notification cannot be denied to them inasmuch as the same applies to nickel falling under Chapter 75. As such, he submits that the claim of availment of notification is required to be allowed. 8. Learned SDR appearing for the Revenue submits that as the predominant factor in the goods was of copper, by applying the said chapter notes, the goods being held to be as non-nickel alloyed or article of nickel so as to earn benefit of notification. 9. We have considered the submissions made by both sides and have examined the chapter notes 1(a) and 1(b) of Chapter 75 relied upon the lower authorities. The said chapter notes are relevant in respect of nickel non alloy and nickel alloy. The reference to weight content and predominance of the weight is relevant for holding nickel items to be of nickel alloy or nickel non-alloyed. As rightly contended by the learned Advocate, that the said chapter notes are not relevant for the pur....
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....n imitation of the Chinese alloy known as paktong All modern, commercially important nickel silvers (such as those standardized under ASTM B122) contain significant amounts of zinc, and are sometimes considered a subset of brass" 16. Thus Nickel Silver is neither nickel nor silver. It is an alloy in which copper predominates in weight and contains nickel up to 20%. This position is applicable for waste and scrap of Nickel Silver too, whether it is Malic grade or Niece grade. The testing done on the impugned goods showed 60.6% of copper by weight. 17. "Nickel Silver Malic Grade" is waste of Nickel Silver consisting of old nickel silver in the form of sheet, pipe, rod, tubes, wire, screen, soldered or unsoldered. 18. "Nickel Silver Niece Grade" consists of turnings of Nickel Silver. 19. Section Notes 3, 5, 6 and 7 of Section XV of the Customs Tariff read as under : "3. Throughout this Schedule, the expression 'base metals' means : Iron and steel, copper, nickel, aluminium lead, zinc, tin tungsten (wolfram) molybdenum, tantalum, magnesium cobalt, bismuth cadmium, titanium, zirconium, antimony, manganese, beryllium, chromium, germanium vanadium gallium, h....
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....hat (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 05 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%." 21. The difficulty in this case or rather with the Tariff entries itself is that "Nickel Silver Malic Grade" and "Nickel Silver Niece Grade" are specifically included in Tariff Item 75030010 of the Customs Tariff. Thus the entry itself appears to ....
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....he Central Revenue Control Laboratory and on test, it was found to be consisting of 60.60% by weight of copper, 13.90% by weight of nickel, and balance of zinc, the Department classified the same as a nickel scrap in form of "Nickel Silver Turnings covered by ISRI code 'niece' " under sub-heading 75030010. The dispute is as to whether these goods are eligible for concessional rate of duty under Notification No. 21/2002-Cus. (Serial No. 438) which covers "nickel & articles of nickel". The original adjudicating authority vide order-in-original dated 14-3-2007 held that since in the goods, in question, though called Nickel Silver Scrap, it is copper which predominates by weight, the same can not be called "Nickel or article of nickel", and hence, the concessional rate of duty under Serial No. 438 of exemption Notification No. 21/2002-Cus., dated 1-3-2002 is not available. This order of Assistant Commissioner was upheld by the Commissioner of Custom (Appeals) vide Order-in-Appeal dated 18-7-2007. Since in the order-in-original passed by Assistant Commissioner, the declared value of the goods had been enhanced and this issue had also been raised in the appeal filed before the Commission....
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....covered by Serial No. 438 of exemption Notification No. 21/2002-Cus. 28. Sh. Amresh Jain, the learned 'departmental representative, pleaded that notwithstanding the classification of the goods, in question, under sub-heading 75030010, the goods can not be treated as "nickel", or "articles of nickel" as predominat constituent of the goods, in question, is copper, which is 60.60% and, therefore, in terms of section note 3 read with section notes 5 & 6 of Section XV of the Customs Tariff, the goods, in question, can not be treated as nickel scrap. He, therefore, pleaded that the goods, in question, are not eligible for exemption under Notification No. 21/2002-Cus. (Serial No. 438). 29. I have considered the submissions from both the sides. Though the goods, in question, are described in the import documents as "nickel silver turnings ISRI code niece" and the department itself has classified the same as nickel scrap under sub-heading 75030010, there is no dispute about the fact that CRCL on testing a sample drawn from the goods, in question, has reported that the goods are in form of turnings and shavings of metal consisting of 60.60% by weight of copper, 13.09% by weight o....