TaxTMI 
TaxTMI 
2017 (8) TMI 89
X X X X Extracts X X X X
X X X X Extracts X X X X
....Commissioner(AR), Shri Nagaraj Naik, Deputy Commissioner(AR) for the Respondent C/20403/2015, C/20404/2015, C/20405/2015, C/20406/2015, C/20407/2015, C/20408/2015, C/20409/2015, C/20410/2015, C/20243/2014, C/20244/2014, C/20284/2014, C/20321/2014, C/20322/2014, C/20323/2014, C/20324/2014, C/20290/2014, C/20349/2014, C/20350/2014, C/20502/2014, C/20503/2014, C/20504/2014, C/21424/2014, C/21841/2014, C/22244/2014, C/22246/2014, C/22247/2014, C/22414/2014, C/ 22423/2014, C/22424/2014, C/22425/2014, C/22512/2014, C/22678/2014, C/22679/2014, C/22680/2014, C/22686/2014, C/22687/2014, C/22754/2014, C/22755/2014, C/20401/2014, C/20402/2015 ORDER [ Order Per : Bench ] The issue being identical in all these appeals, they are being disposed of by this common order. 2. The appellants in all these cases had imported goods declared as Manganese ore falling under CTH 2602 of the Customs Tariff Act. For the purpose of assessment, they sought exemption from addition duty of customs vide Notification No.04/2006-CE dt. 01/03/2006 / Circular No.332/1/2012 dt. 17/02/2012. The entire dispute in these cases are on the eligibility of the imported goods to the benefit of these Notification/C....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... what would constitute concentrate has been reiterated in the CBEC Circular No.09/2012-Customs dt. 23/03/2012. Thus even though this Circular advises that benefit of exemption Notification No.04/2006 will be available to imported ores and not to imported concentrates, it has to be proved that the processes indicated in said circulars have been got done on the imported goods. vi. No enquiries were conducted by the Department with the suppliers of the goods nor any expert opinion was obtained before changing the classification for assessment from ore to concentrate. vii. There is no allegation or finding that any of the processes exemplified in HSN notes to Chapter 26 viz. physical, physic-chemical operations etc. on the ore have been undertaken on the goods imported by the appellants. viii. The orders of the lower authorities are based on presumptions and not on any cogent evidences by way of test etc. Learned advocates appearing took us to para 7 of the order dt. 29/12/2012 of the original authority which has been upheld by the Commissioner(Appeals) in one of the related impugned order, where the original authority has stated that some process of manufacturing have been ta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for the benefit of Notification No.4/2006-CE as substituted by Notification No.12/2012. The said notifications are exempting the additional duty of customs (popularly called as CVD). 6. It is the case of the Revenue and as recorded by the lower authorities that the goods imported by the appellants are Manganese ore concentrate and not Manganese ore. To come to such a conclusion, both the lower authorities have relied upon the HSN explanatory note to Chapter 26 wherein it has been stated that (i) ores are seldom marketed before preparation for subsequent metallurgical operations, the most important preparatory processes are those aimed at concentrating the ores.; (ii) for the purposes of headings 26.01 to 26.17, the term concentrateapplies to ores which have had part or all of the foreign matter removed by special treatments, either because such foreign matter might hamper subsequent metallurgical operations or with a view to economical transport. Reliance is also placed by the lower authorities on the chapter notes to hold that the goods imported are Manganese Ore concentrate and not ore. Reliance is also placed on the meaning of the terms concentrate and orealso on the Boards c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o shift the burden of proof on to importer appellants. In the absence of any such evidence, we have to hold that the Revenues case fails. 9. Looking at the issue from another angle, we find that prior to 01/04/2011, the appellants were importing the same goods from the same sources and declaring them as Manganese ore, wherein the samples were drawn by the lower authorities and the same was sent for analysis to an expert viz. Prof. V.V. Nageswara Rao, Department of Geology, Andhra University, Visakhapatnam. Specimen report of the goods which were analysed by the said Professor for the period prior to 01/04/2011, specifically indicate that the sample is of Manganese order and not concentrate. What made the Department change their stand from 01/04/2011, is nothing but the amendment to chapter note under chapter 26 wherein it is indicated that conversion of ore into concentrate will amount to manufacture and Central Excise duty will be required to be discharged. We do agree that if the Revenue is able to bring on record that the goods which were imported were concentrate, CVD liability will arise. Having said so, we find that the Revenue authorities, surprisingly in all these appeal....