TaxTMI 
TaxTMI 
2017 (11) TMI 489
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....ian Revenue service worked in various senior positions and retired as Chief Commissioner of Chandigarh Zone of Central Excise and Service Tax in January, 2014. Thereafter, he joined CESTAT(Mumbai) as Member(Technical) on 26.05.2014 and remained on probation till he retired on 12-10-2016. The advocate also placed on record a copy of letter dated 29-06-2017 received from Registrar, CESTAT, New Delhi which affirmed that Shri P.S. Pruthi was not confirmed as Member. 2. We have considered the submissions of learned Counsel and observe that Section 35Q of Central Excise Act,1944 read with Central Excise( Appeals) Rules interalia permits ex-employees of Department of Customs and Central Excise or Narcotics to appear as authorized representative of the appellants before appellate authorities provided they had retired or resigned from such employment after having rendered service in any capacity in one or more of the said departments for not less than ten years in the aggregate. Section 35Q (3) provides that no person who was a member of the Indian Customs and Central Excise Service - Group A and had retired or resigned from such Service after having served for not less than three years in....
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....unal and such conditions are not made applicable to a member discharged from service during the period of probation. Thus, on the basis of the aforesaid decisions the Tribunal, with regard to issues (i) and (ii), held that a member of the Tribunal discharged from service during probation period may not be debarred from practicing before it and provisions of Section 129(6) of the Act would be applicable only to such members who cease to hold office only after their confirmation. It was further held that the phrase 'on ceasing to hold office as Member' used in section 129 (6) of the Act would not include discharge of probationer and only a Member who is confirmed to hold office in such capacity can be said to have ceased to hold the same. Since a probationer does not acquire any lien on the post of Member before its confirmation, there is no question of his ceasing to hold the same......................... 27. The challenge to the vires of Section 129(6) before this Court and the Supreme Court was made by officers of the Indian Customs and Central Excise Service who were also working as Member (Technical) in CAGET/CESTAT on different dates. Some of them were repatriated to ....
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....fund claims were filed by the appellant on account of change in classification sought in respect of the Ilmenite Ore exported by them. 8. On 13th September, when the second set of appeals came up for hearing, the consultant representative of the appellant mentioned that the issue of classification under 26140020 was not challenged by the Revenue in the order passed by the Commissioner (Appeals) rejecting the refund claims. The refund claims were rejected on other grounds. However the Bench observed that without deciding the issue of classification in the first appeal, a conclusion arrived in the second appeals could result in an incongruous situation. Therefore, with the consent of both sides,both appeals were taken up for hearing on 15/09/2017. Appeal No E/30911/2016-EX[DB] of 22/11/2016 9. The respondent are manufacturer and exporters of processed Ilmenite. The dispute is about classification of their product--between two competitive entries in the Central Excise Tariff namely 26140010-Ilmenite,unprocessed and 26140020 -Ilmenite, upgraded (beneficiated ilmenite). The Commissioner (Appeals) vide his order No. VIZ-EXCUS-001-APP-027-16-17 dated 06/07/2016 decided the classificati....
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....s book "Chemical Metallurgy" all describe beneficiated ilmenite as synthetic rutile which contains a high percentage of Titanium Dioxide but the processed sand made by the respondent does not.The last contention is that the Commissioner (Appeals) relied on the case of M/s VV Minerals without the finality of the case law. 12. Respondent's contention is that they realized their inadvertent mistake of wrong classification when the case of VV Minerals came to their knowledge. There is no estopple to classification. Revenue is taking contradictory stands. On the one hand it is claimed that Beach sand is not an ore and on the other hand, in Para 5 of the grounds of appeal, the process employed by Trimex is detailed wherein Ilmenite of 7% to 9% is upgraded to Ilmenite of 96% to 97%. In Para 5.1 of the ground of appeal itself states that the process carried out leads to separation of Ilmenite ore. Respondent further contends that Chapter note 4 of Chapter 26 states that the process of converting ores into concentrates shall amount to manufacture. And as per Wikipedia In the mining industry beneficiation or beneficiation in extractive metallurgy, is any process that improves (benefits)....
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....ened raw sand is collected in a surge bin below the trommel and pumped through the slurry pump to a set of spirals termed as rougher spirals. In rougher spirals, the raw sand is processed and the % of ilmenite content in the concentrate is upgraded to 36%-38% from 8-10% ilmenite in the raw / unprocessed ilmenite, utilising the specific gravity difference between the ilmenite and quartz; * The middling fraction from the rougher spirals is treated with mids-scavenger spirals for further recovery of ilmenite into concentrate. The tailings from rougher spirals and mids-scavenger spirals is pumped back to the mined out areas; * The concentrate from the rougher spirals and the mids-scavenger is further beneficiated in another set of spirals termed as 'cleaner spirals'. In this process the ilmenite content in the concentrate is upgraded to 52-55% from 36-38% in the feed material. * Two portions arrive, Portion-I contains Ilmenite 30-32%, Rutile 1.3%, Sillimanite 20%, Zircon 1.0%, Garnet 20% and Portion-II is waste (Quartz). The waste portion is transported to the mining areas for back filling; the Portion-I is further processed in another set of spirals, where, this is split....
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....ll separators termed as secondary HT separators for further recovery of ilmenite into conducting fraction; * The non-conducting fraction from the primary and secondary HT separators are further processed in a set of rare earth roll (RER) magnetic separators to recover misplaced ilmenite in the non-conducting fraction; * The combined material of conduction fraction from primary and secondary HT separators and the magnetic fraction from RER is further beneficiated in rare earth drum magnetic separators. The magnetic fraction is collected as ilmenite product having more than 96% pure ilmenite and the non-magnetic portion is final Rutile mineral of 94%.Thus the ilmenite is upgraded to above 96%. 17. With the process undertaken described above, we may now see the relevant entries under Chap26 in the Tariff: 261400 - Titanium Ores and Concentrates 26140010 ---Ilmenite, unprocessed 26140020 Ilmenite, upgraded (beneficiated Ilmenite including Ilmenite ground) --- Rutile: 26140031---Rareearth oxides including rutile sand 26140039--- Other 26140090--- Other 18. The issue hinges on the point whether the processes employed by the respondent amount to beneficiation so as to ....
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....ducts named as, middling (ash 40-45%), Tailings (ash 40-45%) and Rejects (ash 60-65%). The product quantity after beneficiation process gets increased due to wet process by adding moisture into the output, shown by an example below- Production (Extraction): The basis figure of production of 100 tonnes of ROM coal has been taken. Therefore, Quantity produced (Extracted) : = 100 tonnes Beneficiation: The products are dewatered but still the surface moisture gets adhered to the product generated. The beneficiation is a wet process i.e. raw coal mass flows through different process in slurry form. Output is measured on wet process because it is transported on wet basis (with moisture). Hence the output is more than the input of raw coal. Beneficiation process results in Clean Coal; Middlings; Tailings; and Rejects Conclusion: It is quite clear that beneficiation process (dense media gravity separation and froth floatation) are a physical separation process to separate higher ash coal and lower ash coal, so no chemical changes are there in the coal mineral, as there are no chemical reactions involved during this beneficiation process....". It is undoubtedly cle....
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....mmissioner (Appeals) is in fact based on the relevant headings and is supported by Tata Steel judgement. Revenue has also relied upon Ponds India Ltd. Vs. Commissioner of Trade Tax, Lucknow-2008(227) ELT 497 (SC) to express an opinion that when an entry has been interpreted consistently for several years, ordinarily it would not be permissible for the Revenue to depart therefrom. We have read this judgment. It relates to the issue whether petroleum jelly is a drug or a cosmetic. The issue was discussed at length and on merits it was held that there is no need to change the classification from 'drug' to 'cosmetic'. An observation was indeed made in the judgement regarding consistency of assessment. But we find the judgment never expressed a view that even if classification is required to be changed on merits it should not be done. It appears to us that the officers who have framed the grounds of appeal did not read the entire judgment. The ratio of the cited case is clearly not applicable to the present case.On the contrary, it is a well established principle that judgments should not be quoted out of context.Hon'ble Supreme Court in the case of Commissioner of Centr....
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....on" means processing of minerals or ores for the purpose of- (i) regulating the size of a desired produce; (ii) removing unwanted constituents; and (iii) improving quality, purity or assay grade of desired product This is precisely the process undertaken by the appellant. Revenue has contended in para 4 of the grounds of appeal that this definition does not apply because the goods in question is a minor mineral to which the said Rules do not apply by virtue of exclusion clause in Rule 2(iv) of chapter 1 of the Rules. We find that in terms of Rule 70 of Mineral Concession Rules, sand used for metallurgical process will not be treated as a minor mineral. In the present case the sand being used for metallurgical process is not therefore a minor mineral and does not fall under the exclusion clause 2(iv) of the Mineral Conservation and Development Rules. In any case, Ilmenite is the goods in question here and not the sand. Ilmenite is rare earth mineral. Even the Press Information Bureau of Ministry of Mines note dated 12.08.2015 fixing royalty rates, refers to Ilmenite as a major mineral. Hence, contrary to the reasoning of Revenue, the definition of beneficiation as given in R....
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....776/2017-CU(DB) The appeals arise from Order in appeal No.VIZ-CUSTOM-APP-009 to 011-17-18 dated 31/05/2017 under which the Commissioner (Appeals) upheld the order of adjudicating authority who rejected the refund amounts of Rs. 1,43,93,974/-,Rs 2,34,68,983 and Rs. 7,34,95,348 respectively,under three separate orders. 2. The facts are recapitulated as follows. The appellant exported Ilmenite under various shipping bills from December 2014 to May 2015. The shipping bills were assessed provisionally, as per practice, awaiting the finalization of the quantities and value of the goods exported. They were finalized later on confirmation of the quantities exported. The classification of the goods exported was stated as 26140010. The duty on export of Ilmenite unprocessed as well as processed was 10%. However, with effect from March 2013 vide Not 15/2013-Cus dated 1-3-2013, the export duty on unprocessed Ilmenite became 10%, whereas on processed Ilmenite under 26140020 it became 5%. In the case of VV Minerals Vs. CCE- 2015 (10) TMI 2261- CESTAT Chennai, the Tribunal held that the processed ore exported by the party is upgraded Ilmenite (beneficiated Ilmenite) and chargeable to duty at 5%....
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....ion of classification is not sustainable. It was also contended that in the case of Aman Medical Products Ltd. Vs. Commissioner - 2010(250) ELT 30 (Del.), the Delhi High Court had held that the judgments of Priya Blue Industries and Flock India will not apply when there is no lis pending between the parties.Various judgments were also referred to by the appellant in their favour.It was also argued that, in any case, Section 27 of the Customs Act dealing with refunds was amended in 2011. In view of such amendment the ratio of Priya Blue and Flock India does not apply. 6. We have carefully considered the submissions made by both sides and the law on this issue. 7. We find that in the case of Aman Medical Products the Delhi High Court held that ".....4. If therefore we refer to language of Section 27, it is more than clear that the duty which is paid is not necessarily pursuant to an order of assessment but can also be 'borne by him'. Clauses (i) and (ii) of sub-section (1) of Section 27 are clearly in the alternative as the expression or is found in between clauses (i) and (ii). The object of Section 27(i)(ii) is to cover those classes of case where the duty is paid by a ....
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....the Assistant Commissioner Central Excise vide letter dated 23-11-2015. In other words, there was challenge to the rate of duty even if there was no appeal against the assessment order finalizing the Shipping Bills.But no action was taken by Customs on the letter dt 6-11-2015. B. CESTAT order in case of Ruchi Infrastructure Ltd.;Bangalore Bench- 2008 (224) ELT 477 (Tri Bang.) Upheld by High Court of Andhra Pradesh- 2015 (317) ELT A214 (AP) C. CESTAT order dated 22/03/2016 in Shyam Solvex (I) Pvt. Ltd vs. Commissioner Hyderabad in Appeal No C/28528/2013. It was held that "It is the contention of Department that a refund claim is not maintainable when the assessee did not challenge the assessment order before any appeal forum and the assessment having become final, the refund cannot be allowed. Section 17 of Customs Act, 1962, has been amended with affect from 8/4/2011 to provide for self-assessment as against assessment by customs officials. Simultaneously, amendment was brought forth in Section 27 also. Taking into consideration these amendments, the Tribunal in various judgments has analyzed the issue of eligibility of refund when bill of entry is filed on self-assessment bas....
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....ssary to file appeal against such order which has been accepted as one where excess amount of duty is paid, In our considered opinion there is no such necessity to file an appeal and without there being an appeal, refund claim is maintainable and if the persons make out a case such refund claim ought to be allowed. The customs officials or the CESTAT cannot deny the refund when there is nothing adverse to the person who paid the customs tariff. We are supported in this view by the decisions of the Supreme Court in Flock India and Priya Blue on which the Senior Standing Counsel also placed reliance." 10. A significant change has been brought about in the law dealing with refund claims. This change was brought about much after the judgments in Priya Blue and Flock India were delivered. The relevant Section 27before 08/04/2011 read as- 27. Claim for refund of duty. (1) Any person claiming refund of any duty (i) paid by him in pursuance of an order of assessment, or (ii) borne by him, And with effect from 08 /04 /2011 it reads as 27. Claim for refund of duty. (1) Any person claiming refund of any duty or interest, - (i) paid by him; or (ii) borne by him, may make an ....