TaxTMI 
TaxTMI 
2023 (3) TMI 1019
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....l Ni 62.15 62.26 Cobalt Co 0.02 0.01 Chromium Cr 21.03 20.99 Iron Fe 4.56 4.59 Molybdenum Mo 8.2 5.22 Carbon C 0.02 0.02 2.1 Chapter Note under chapter 75 for Nickel alloys reads as under : "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 %." At the time of first assessment of the goods the Deputy Commissioner of Customs, Air Cargo Complex classified the goods under CTH 72189910 as billets of stainless steel on the ground that the content of cobalt didn't exceeds 1.5 %. He also relied on the definition of stainless steel appearing in Chapter 72 of the Customs Tariff Act. The issue was challenged before the Commissioner (Appeals) who vide order dated 12.12.2019 remanded the issue to re-examine the issue in the light of section notes, chapter note, definition of....
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....ontent by weight does not exceeds 1.5% and also that the content by weight of any other element does not exceeds the limit specified. The said sub- heading note 1 to chapter 75 reads as follows:- "Sub-Heading Notes: 1. In this Chapter the following expressions have the meanings hereby assigned to them: (a) Nickel, not alloyed Metal containing by weight at least 99% of nickel plus cobalt, provided that: (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 0.5 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 %" ....
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.... 7505 11 -- Of nickel, not alloyed : 7505 11 10 -- Hollows bars kg. 5 % - 7505 11 20 -- other bars; rods and profiles kg. 5% - 7505 11 12 -- Of nickel alloys: 7505 12 10 -- Hollows bars kg. 5% - 7505 12 20 -- other bars; rods and profiles kg. 5% - It appears from the record that the imported goods by the appellant was declared as Nickel billets, which was classified under CTH 75051220. Nickel Billets falls under this tariff entry, regarding which there is no dispute. As per the mill test certificate submitted by the appellant, the imported item was found to be composed of more than 60% of nickel and the rest other alloying elements. 4.1 We find that as per the Note 5 of Section XV, an alloy of a base metal has to be classified as an alloy of the metal which by weight predominates over total weight of other elements. In the present case the composition of iron is less than 5% and nickel is 62.26% which means that the nickel predominates over the content of iron and other elements. For this reason itself the goods in question would ordinarily be cla....
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....ind that between sub heading note 1 (b) (i) and 1 (b) (ii) there is no mention of "and" or "or". Between sub heading 1 (b) (ii) and 1 (b) (iii) there is specifically mention of word "or". Interpreting the above text the revenue has come to the conclusion that to qualify as nickel alloy sub heading note 1 (b)(i) has to be mandatory satisfied along with the conditions specified in sub heading note of 1 (b) (ii) or condition specified in sub-heading note 1 (b)(iii). 4.5 First of all we find that there is no " and" appearing between sub heading note 1 (b) (i) and 1 (b) (ii) which itself indicates that it is not necessary to satisfy both the condition prescribed in sub heading note 1 (b) (i) and 1 (b) (ii).Learned counsel has rightly pointed that whenever two conditions have to be simultaneously satisfied the legislature has put the word "and" between those condition. He cited the example of note 3 and 4 of chapter 4 which is reads as follows:- "3. Products obtained by the concentration of whey and with the addition of milk or milkfat are to be classified as cheese in heading 0406 provided that they have the three following characteristics: (a) a milkfat content, by....
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....content more than 3%;or (c)having brightness of less than 60%, a caliper of 254 micrometres (microns) or less and an ash content more than 8% Heading 4802 does not , however, cover filter paper or paperboard (including tea-bag paper) or felt paper of paper board." From the above it is apparent that whenever legislature intended that two conditions have to be simultaneously satisfied it has specifically mentioned word "and" between those condition and whenever any one of the two conditions or more conditions are to be satisfed, the legislature has specifically put the word "or" in between those conditions. 4.6 It is also noticed that the sub-heading note 1 (b) (i) requires the content weight of cobalt to exceed 1.5%. The sub heading note 1 (b) (iii) requires the total content of nickel + cobalt to exceeds 1 %. If the subheading note 1 (b) (i) is held to be a necessary requirement then the sub heading note 1(b) (iii) becomes otiose in so far as if the alloy contains cobalt in excess of 1.5% then it will obviously satisfy the condition of Nickel + cobalt exceeding 1 % . In this background also it is seen that the sub heading note 1(b) (i), 1(b) (ii), 1(b) (iii)....