TaxTMI 
TaxTMI 
2014 (8) TMI 246
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....een discussed with me by the Revenue and I had sought to know whether either party had any objection to this Bench to hear the appeal (I and me refer to Member (Technical) wherever used). After ascertaining that both parties had no objection and at the request of both the sides, the Bench proceeded to hear the appeal. An Incidence has been cited wherein the Hon'ble Chief Justice of Supreme Court had recused himself on the advice of senior counsel Shri F.S. Nariman who was present in the Court. R.2. We find that the letter is based on incorrect information. It was not mentioned that the matter had been discussed with me by the Revenue. What was mentioned was that, I had heard about the issue and I had also heard that even one of the importers had informed the investigating officers that importers also are in agreement with the view taken by the Revenue about classification. This was a casual conversation, heard by me and there was no application of mind on the issue and I had no occasion to discuss or study the issue at all thereafter. Even though it was a casual conversation heard by me in the middle of a group of officers, yet I had offered to recuse since it has always bee....
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....o basis for apprehensions expressed by the company in their letter about future consequences and the fact remains that even the basis for the request for recusal is imaginary. R.6. In the letter it has been repeatedly said that they have no misgivings regarding the integrity or impartiality of the Bench but are only trying to prevent anyone from contending that the Hon'ble Bench ought not to have heard the matter. We do not find any justification for this apprehension or submission. R.7. Moreover, the recusal instance in the case of the then Hon'ble Chief Justice is not comparable since according to the news item enclosed to the company's letter, Justice Kapadia had declared that he and his wife investments in shares had a market value of Rs. 41 lakhs which in the Indian context, may not be considered a small amount. Moreover having interest in one of the private parties in dispute is entirely different from a casual conversation between officers not followed by a discussion about the issue nor considered in greater depth and cannot be compared with the case wherein there was a pecuniary interest. R.8 The Hon'ble Supreme Court in the case of Subarea Roy Sah....
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....ade by Mr. R.K. Anand, an eminent Senior Advocate, before the High Court of Delhi, seeking the recusal of Mr. Justice Manmohan Sarin from hearing his personal case. Mr. Justice Manmohan Sarin while declining the request made by Mr. R.K. Anand, observed as under: "The path of recusal is very often a convenient and a soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favour, affection or ill will while upholding the constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting / Bench preference or brow-beating the Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office." The above determination of the High Court of Delhi was assailed before this Court in R.K. Anand v. Delhi High Court, (2009) 8 SCC 106. The determination of the High Court whereby Mr. Justic....
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....39;ble Supreme Court would have benefited the Government and fact that beneficiary would be Government of India and no other individual which is another aspect considered to hold that certainly no substance in the aspersion cast by the learned counsel. In this case it is not even true that the matter was discussed and it was not even mentioned that the matter was discussed and there is absolutely no ground to take a view that even Government would benefit. Unlike the case before the Hon'ble Supreme Court where a decision had already been given and after the decision Hon'ble Supreme Court was compelling Mr. Subrata Roy Sahara to make the payments by ordering detention, in this case, we had not even heard the matter and only it is an apprehension on the part of the company which is yet to file an appeal before us and which was not even represented by anybody and which is not even making mention of the preliminary discussion in this regard we had which has been referred in the order referred to explaining why the final order is being passed even though stay applications were listed. We consider that it would be totally unfair and unethical on our part to refrain from pronounci....
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....man to recuse myself. R.17. At the cost of repetition, I would like to make it clear that there was no discussion about the case with anyone leave alone Revenue officers before hearing. R.18. In view of the above observations, the request made by the company for recusal is rejected and we proceed to decide the matter before us in accordance with law. 1. In all these appeals, the issue involved is common and in all the cases only stay applications have been listed for hearing. The hearing first started in the case of M/s. Coastal Energy Pvt. Ltd. on 22/05/2014. On that date after matter was heard for some time, learned sr. counsel for the appellant sought adjournment and accordingly the matter was adjourned to 27/05/2014. On 27/05/2014, there was a request made by the AR for the Revenue that the Department would like to appoint Special Consultant and therefore the matter may be adjourned. As per the request made by him and as per the date sought by him with the consent of other side, the matter was fixed for hearing on 03/06/2014. On 03/06/2014, when the matter came up for hearing, both the sides were asked whether hearing should be proceeded at all since according to both ....
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....ring i.e. on 06/06/2014, Shri PRV Ramanan, learned special consultant for the Revenue wished to submit written submissions and promised to submit the same on 09/06/2014 and hand over copy to the defence counsels also. On the part of the defence, it was submitted that they would submit their submissions if any on 10/06/2014. Accordingly on 09/06/2014, the written submissions of special consultant were received and submissions from the counsel for M/s. Coastal Energy were also received on 10/06/2014. 5. Shri V. Sridharan, learned sr. counsel, assisted by Shri G. Shivadass, advocate, on behalf of M/s. Costal Energy Pvt. Ltd., took us through the history of taxation in respect of coal on the first day and since this gives a background of the classification as well as duty structure in a broad manner, we consider it appropriate that the same should be briefly covered. There was no definition of different types of coal in British Tariff Nomenclature which was being followed all over the world prior to introduction of HSN. After the introduction of HSN, India followed the same in 1986. Also the world pattern of levy on coal continued. Certainly from 1994 onwards, there were two rates f....
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....e of high prices of coal. I propose to ease the situation by providing full exemption from basic customs duty and a concessional CVD of 1 per cent to Steam coal for a period of two years till March 31, 2014. Full exemption from basic duty is also being provided to the following fuels for power generation: * Natural Gas and Uquified Natural Gas; and * Uranium concentrate, Sintered Uranium Dioxide in natural and pellet form. Learned counsel submitted that this shows that the intention was to give relief to domestic power producers who are using steam coal and other fuels specified in the speech. In the budget 2013, the Hon'ble Finance Minister said as follows:- 166. Steam coal is exempt from customs duty but attracts a concessional CVD of one percent. Bituminous coal attracts a duty of 5 per cent and CVD of 6 per cent. Since both kinds of coal are used in thermal power stations, there is rampant misclassification. I propose to equalize the duties on both kinds of coal and levy 2 per cent customs duty and two per cent CVD. 8. Learned sr. counsel dealt with t....
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....oal and bituminous coal cannot be differentiated and if that is done, entries related to coking coal/steam coal may become redundant which we will be dealing with at a later stage in that particular category of submission. At this stage, it was the submission that there was no dispute at all in the history of taxation of coal about steam coal. It was also submitted that the appellants M/s. Coastal Energy Pvt. Ltd. had been importing coal at least for the past 10 years and all through, they have been describing the coal as steam coal and the same was assessed as steam coal and no questions were asked. In view of the fact that throughout the period, coal was being assessed as steam coal and there was no dispute about classification and description etc, suddenly just because there was a differential rate of duty prescribed for steam coal, it was not appropriate for the Revenue to take a view that the coal imported by the appellants is bituminous coal only to deny the exemption which they entirely deserved since what they were importing earlier was steam coal and what they imported now is also steam coal. 10. In our opinion, we cannot go by the history of taxation and we also cannot....
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....tems. * to meet households needs- cooking, heating of water etc. Metallurgical bituminous coal as the name shows is used essentially in the production of coke which is - * a primary input for producing iron and steel; * also used in other industries of metal production. Anthracite is the least common and most expensive of the coals. It has some unique features: * the capacity, for instance, for a smokeless fire; * used for specific purposes. 13. On the basis of technical literature and various authoritative books, it was submitted that all coals of a quality that allows production of coke suitable to be used as a blast furnace charge is known as coking coal. Steam coal is a coal which is suitable for use in power generation and generation of steam. The basis of the two classifications are that one is based on metamorphism and other is based on end use. Therefore it is submitted that the two are not mutually exclusive and there is certain amount of overlapping between the two. 14. While there is a statutory definit....
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....-Coal, whether or not pulverized, but not agglomerated 2701 11 00 -- Anthracite 2701 12 00 -- Bituminous coal 2701 19 -- Other coal : 2701 19 10 --- Coking coal 2701 19 20 --- Steam coal 2701 19 90 --- Other 2701 20 - Briquettes, ovoids and similar solid fuels manufactured form coal: 2701 20 10 -- Anthracite agglomerated 2701 20 90 Other 17. In this regard, we would be failing in our duty if we failed to record our appreciation for the clarity brought about by the learned special consultant as regards the meaning of '-, --, ---, ----', Rules of Interpretation and meaning of heading, sub-heading etc. After he explained the procedure for classification and the logic in classification, issue became clearer than what they were. Before we proceed further we would explain his submissions as they were understood by us during the hearing as regards classification of the goods and while doing so, we would also consider the submission of the learned senior counsel that a definition is always subject to the context to the contrary whether so stated in the definition or otherwise. 18. First of all it would be appr....
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.... items the first four-digits of which correspond to that number; (b) "sub-heading", in respect of goods, means a description in the list of tariff provisions accompanied by a six-digit number and includes all tariff items the first six-digits of which correspond to that number; (c) "tariff item" means a description of goods in the list of tariff provisions accompanying eight-digit number and the rate of customs duty. Above additional notes make it clear that the comparable items have to be identified by the number of digits accompanying the headings. It was submitted by the special consultant for Revenue that the number of digits and the dashes invariably tally and follow a pattern and the principles to be applied to headings, sub-headings and tariff items are taken note of and kept in mind while providing the number of digits. Even though he explained the logic behind the number of dashes behind each headings and the difference between heading, sub-heading and tariff item with illustration, we do not consider it necessary to go into the same except stating what exactly is understood with regard to the dispute before us in this case. ....
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....he purposes of this rule the relative Section and Chapter Notes also apply, unless the context otherwise requires." This brings us to the position that we have to examine whether according to the rules under which heading the item is classifiable and thereafter we have to see whether section notes/chapter notes have to be applied since if the context otherwise requires, said notes, need not be applied. It was the submission that in this case the head notes need not be applied on behalf of the appellants. 24. We have already reproduced the sub-heading notes above. In the light of the above, we have to examine how the classification of the product has to be approached and what would be the result thereafter. 25. Coal has been first of all classified under the respective sub-headings (6 digits) depending upon whether the same is classified as 'Anthracite', 'Bituminous' or 'Other coal' which fall respectively under sub-headings 2701 11, 2701 12 or 2701 19. 26. To classify the imported coal under the correct sub-headings we have to look at the tariff description and sub-heading notes 1 & 2 of chapter 27. The sub-heading notes provided definitions of the expressio....
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.... part of the statutory tariff and relevant headings in the tariff have to be interpreted and applied in the light of section notes and chapter notes which are statutory and binding like the headings themselves; that the scheme of the Customs Tariff Act is to determine coverage of respective headings in light of the section notes and chapter notes and in this sense the section notes and chapter notes have an over-riding force on the respective headings and are therefore relevant in the matter of classification of goods under the Customs Tariff; that these section notes and chapter notes sometimes expand and sometimes restrict the scope of certain headings; that Rule-1 ibid gives primacy to the section notes and chapter notes along with terms of the headings and therefore they should be first applied for determining correct classification of goods; that if neither the heading nor section-notes or chapter-notes suffice to clarify the scope of a heading and if no clear picture emerges then only can one resort to the subsequent provisions of the GI Rules. From the above, it can be deduced that imported coal meeting the following two specific parameters of bituminou....
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....quires. 35. In addition it was also submitted that all parts of a statute have to be read together and no portions should be read in isolation. In the Principles of Statutory Interpretation of G.P Singh (Volume V) page 415 and 416 it is said that "every clause of a statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject matter. It is spoken of construction "ex visceribus actus". "It is the most natural and genuine exposition of a statute", laid down Lord Coke "to construe one part of a statute by another part of the same statute, for that best expresseth the meaning of the makers." To ascertain the meaning of a clause in a statute the court must look at the whole statue, at what precedes and at what succeeds and not merely at the clause itself, and, "the method of construing statutes that I prefer". Singha C.J observed "the court must ascertain the Intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the....
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....d in the written submission. However, we find in page 530, a Table of 'Classification of Coals by Rank'. In this Table-1, coal with Gross Calorific Value (GCV) of equal to 10500 would be agglomerating and it would be non-agglomerating also. If GCV range between 10500 to 11500 (10500 is equal to 5833 kcal/kg), it can be agglomerating or non-agglomerating. It was submitted in the written submission that the contention of Revenue that there can be coking coal of non-agglomerating quality is without any material and contrary to all technical literature produced by the appellants. According to the definition of International Energy Association (IEA) for coking coal, cited by the appellants in page 519 of Volume VI, coking coal is bituminous coal with a quality that allows the production of coke. Its GCV is greater than 5700 kcal/kg and lesser than 5833 kcal/kg on an ash-free but moist basis. Determination of GCV of coal based on an ash-free but moist basis and mineral matter free basis would depend upon ash and sulphur contents in the coal. 39. Learned special consultant referred to worksheet submitted by the appellant, according to which Calorific Value (Kcal/Kg) of 5829 on mois....
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.... ash-free but moist basis whereas coal with GCV of 5833 kcal/kg was mineral matter free basis. From the ASTM Standard submitted by the appellants themselves, we find that GCV of 5709 kcal/kg on moist, ash-free basis is equivalent to GCV of 5829 kcal/kg on moist, mineral free basis. Therefore, we do not find any discrepancy in this regard. 44. In any case, we have already considered ASTM standard regarding agglomerating and non-agglomerating coal and range of GCV and have come to the conclusion that the coal having GCV of 10500 Btu to 11500 Btu can be either agglomerating or non-agglomerating. 45. Another submission that was made and required to be examined is regarding the clause "unless the context otherwise requires" and it was submitted that in this case, 'context requires otherwise' and therefore, sub-heading notes should not be considered when it comes to classification of coking coal and steam coal. It was submitted that in view of the fact that coking coal and steam coal and bituminous coal can be classified as either of the two, it would be appropriate to first eliminate coking coal entry and steam coal entry and only when coal is not classifiable under both, the ....
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....t would be appropriate to consider the applicability of decision of the Tribunal in the case of Swarup Fibre Industries (supra). Reliance placed on the decision in Swarup Fibre Industries ' case is misplaced. In that case, the item to be classified was 'vulcanized fibre' in sheet form. The dispute was whether these would be classified under 'primary forms' or as fully finished sheets. There was no reference to a third tariff description as being argued herein. Ambiguity arose because the definition of primary forms did not specify 'sheets' as one of the primary forms, though it was an admitted fact that in the context of vulcanized fibre, sheet form was one of the primary forms. The decision was rendered in the context of Central Excise Tariff, which was adopted from the HSN. The scope of the heading note was expanded taking note of the facts peculiar to the case. It did not do any violence to the Note. More significantly, with reference to the products viz. steam coal, forming the subject matter of the present appeals, sub-heading note (2) is not at all ambiguous since the same could fall either under 270112 or 270119 based on the GCV (m, mmf). 48. The next subm....
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.... is to determine the classification of the goods. Once classification is determined, we would proceed to examine the applicability of notification. Doing vice-versa is not correct. If the notification contains the tariff heading and description of the goods and both tally with relevant tariff heading in the Tariff, the applicability of exemption has to be decided on the basis. In this case, the steam coal as well as tariff heading are in the Notification. Once classification is determined as bituminous coal, the heading in the notification for the item to be exempted does not get covered at all because either tariff heading or description or both do not tally with the classification of the goods. Once the exercise of classification is completed, interpretation of the notification has to be on that basis and a notification cannot be interpreted independently unless there are specific situations exist which we have found in this case not to be in existence. 52. Learned sr. counsel also submitted that an interpretation beneficial to the importer has to be adopted. He drew our attention to the letter written by the Power Ministry to the Finance Ministry in this regard. The Power Min....
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....rate of duty for NPK fertilizer as 23:23:0 which had been omitted from the list of fertilizers of NPK category in the notification. It was held that there was no classification among various chemical fertilizers of the same class. We find that on facts, this decision would not be applicable. 56. Learned sr. counsel for M/s Coastal Energy Pvt. Ltd. submitted that as an alternative, the appellant is not at all liable for payment of CVD. It was his submission that CVD becomes liable when the product arises because of manufacturing or production activity. He relied on the decision In the case of Commissioner of C. Ex. & Cus., Bhubaneswar-I vs. Tata Iron and Steel Co. Ltd. [2003 (154) E.L.T. 343 (S.C.)]. He submitted that in this case, even though this decision was rendered in the context of Sections 6 & 7 of the Coal Mines Act, 1974, this decision is applicable to the facts of this case also. He submitted that in that case, the Hon'ble Supreme Court took a view that no liability for a Central Excise duty on coal arise from coal mines is leviable and therefore, no question of additional customs duty equivalent to excise duty leviable under the Coal Mines Act. 57. Learned speci....
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....Even Section 7 of the Act only empowers the Central Government to impose on all coal imported or brought into India a duty of customs at the rates equivalent to the rates of duty of excise leviable under Section 6. It nowhere provides that coal is produced or manufactured in India. Hon'ble Supreme Court also observed in paragraph 10 that - "Even if coal is washed and ash contents are reduced, Section 6 uses the phraseology ("of all coal raised") and "on all coke manufactured and dispatched", which would mean that coke is manufactured while coal is only raised. Hon'ble Supreme Court interpreted the words 'coal is raised and dispatched' and did not go into the question as to what are the processes undertaken in the coal mines. The Hon'ble Supreme Court also did not go into the question as to whether additional customs duty leviable as equal to the duty leviable under Central Excise Tariff is leviable or not. 58. We find substantial force in the arguments made by learned special counsel for Revenue which are as under : "(1) Both domestic coal and imported coal available in the market undergo substantial transformation form....
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.... as 'coking coal'. If swelling index the coal is lower and ash and sulfur contents are different, such coal will be suitable for use as 'steam coal'. As submitted by one of the appellants, steam coal has distinct name, use and character and therefore, is clearly distinguishable from bituminous coal and therefore, process has to be considered as manufacture. He also submitted that classification is done as the goods are presented at the time of import. This would show that even if we assume that bituminous coal when it is sold as bituminous coal itself also is crushed, sized and graded, the processes amount to manufacture since what is extracted will be coal ore and what emerges is specific category of coal which marketable and sold. Ore which is extracted in bulk and in large size may not be straightaway marketable unless quality parameters are verified, washed, crushed, graded in to size, etc. therefore, the decision in the case of TISCO (supra) and Hyderabad Industries Ltd. Vs. UOI [1999 (108) E.L.T. 321 (S.C.) relied upon by learned sr. counsel are not applicable to the facts of this case. We are not dealing with other three cases mentioned since we consider that the con....
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....he next decision relied upon by learned counsel is in the case of C.C. (Import) vs. Ashima Dyecot Ltd. [2011 (267) E.L.T 122 (Tri.-Mumbai)] . In this case also, the precedent decision taking a view that inputs contained in imported commodity not shown as chargeable to excise duty in which case availment of Cenvat credit by Indian manufacturer ruled out and the benefit of exemption is allowed. In this case, no such evidence has been brought out before us nor has been claimed as Indian manufacturer at all to take Cenvat credit. 63. Learned special consultant for Revenue submitted that condition in the notification has been deliberately worded so that benefit would accrue only to the domestic coal manufacturer vis-a-vis importer of coal. Eligibility to credit under Rule 3 or Rule 13 of Cenvat Credit Rules, 2004, in respect of the inputs / input services used for manufacture of goods is available only when the goods are manufactured in India. He submitted that CVD of 6% is payable if an Indian manufacturer is not able to show that he has not availed any Cenvat credit. He submitted that on the same analogy, an importer of coal would be required to pay CVD at the rate of 6% unless he ....
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....ble on imported goods. Therefore, the stand of the department is that since the imported goods are not the goods on which Cenvat credit or Modvat credit can be taken the Notification obviously does not cover imported goods, is well founded. In this view of the matter, we hold that the Commissioner (Appeals) is wrong in extending the benefit of the Notification to the importers herein, and accordingly set aside the impugned order and allow the appeal." 66. Further, learned special consultant for Revenue also relied upon the decision in the case of Motiram Toltaram vs. Union of India [1999 (112) E.L.T. 749 (S.C.)] . The relevant paragraphs 2, 3, 11 & 12 relied upon by learned special consultant are reproduced below:- "2. The appellants imported consignments of polyvinyl alcohol on which additional duty under Section 3 of the Customs Tariff Act was sought to be imposed. The contention of the appellants before the authorities was that polyvinyl alcohol when manufactured in India from Vinyl acetate monomer, on which appropriate amount of duty has been paid, is subjected to a concessional rate of excise duty of 10% ad valorem , instead of the normal duty of 40%, ....
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....tipulated in the said notification has been complied with. 12. It is contended by Shri Prashant Bhushan that on the polyvinyl alcohol imported by the appellants, raw material used was vinyl acetate monomer on which no duty under the Indian law has been paid. He submits that the appropriate duty being nil because it was not manufactured in India, therefore it must be regarded as if appropriate duty had been paid relying upon Collector of Central Excise, Patna v. Usha Martin Industries [1997 (94) E.L.T. 460 (S.C.) = 1997 (7) SCC 47] and the appellants would be entitled to the benefit of the Notification in question. We are unable to agree with this contention. Vinyl acetate monomer is an Item which is manufactured in India and a rate of excise duty is leviable thereon. On the polyvinyl alcohol which has been imported, vinyl acetate monomer has not been subjected to the appropriate amount of duty payable under the Indian law. It is only if this payment had been made that the Notification No. 185 of 1983 would have been applicable. Appropriate amount of duty would mean the duty payable under the Central Excises and Salt Act or under the Customs Tariff Act. Because....
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....ular was issued for the purpose of examination of applicability of concessional rate of CVD and has nothing to do with classification. The circular issued for one purpose cannot be and should not be considered for determining classification when the intention is not to do so. As regards the submission that there is no bar on steam coal having same values as bituminous coal, we find that this is not acceptable. We have already dealt with this issue in detail and we have found that steam coal with certain characteristics would definitely not fall under bituminous coal and in such situations steam coal is classified as steam coal and not as bituminous coal. In this regard, we had already mentioned and referred to the submission by the special consultant that in Vishakhapatnam, in respect of 533 Bills of Entry leading to the issue, in respect of 133 Bills of Entry no demand was raised since Department accepted that the coal imported was steam coal and not bituminous coal. 69. As regards the submission that the burden of proof as to why the product is not steam coal is on the Revenue, It is felt that it is not for the Department to show that what is imported is not steam coal. Depart....
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....or the trade parlance has been discussed and considered earlier. Moreover, once an item becomes classifiable as bituminous coal, we have already taken a view that it would lead us to the conclusion that there is nothing wrong with the tariff nor there is any need to go into intention of the legislature since no heading becomes redundant or there is no conflict to consider this submission at this stage and we do not think the submissions here would make a difference. 73. Shri B.V. Kumar, learned counsel appeared for M/s. Maruthi Ispat & Energy Pvt. Ltd., He relied on the test report submitted to submit that all the test reports, the data in respect of volatile matter and gross calorific value and as received basis has been taken. It was his submission that Department has not cited the standards prescribed for steam coal that certificate of sampling received from the overseas supplier could be compared with such standards. We have already dealt with this issue when we were dealing with the classification issue and therefore we do not consider it necessary to deal with the same. 74. As regards the submission that when chapter note refers only to the particular calorific value li....