TaxTMI 
TaxTMI 
2024 (1) TMI 1294
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....position of redemption fine and penalties under Section 112(a), 112(b), 114A, 114 AA, and 117 of the Customs Act. 1.1 The basic issue involved in the present appeal is whether "Apatite (Ground) Calcium Phosphate / Natural Calcium Phosphate" imported by the Appellant is correctly classifiable under CTH 25102030 as claimed by them or is to be classified under CTH 28352690 as confirmed vide the impugned order. The consequent differential import duties and penalties are imposed against the Appellant Company vide the impugned, apart from imposing various personal penalties on other co-Appellants. 2. Shri. Saurabh Dixit, Learned Counsel appearing on behalf of the Appellant Company and other Noticees, at the outset, submitted that the very same nature of goods imported from the same supplier earlier, were also the subject matter of classification dispute and vide OIA dt. 5.9.11, the goods in question were held to be classifiable under CTH 2510 2030. The said OIA dt. 5.9.11 was accepted by Customs department and no appeal was filed there against. He submitted that the sample drawn from factory premises after its clearance from Port of import, is improper and the test report of such s....
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....at such communication exchanged after the disputed imports, in no way have any bearing on classification of goods imported prior thereto. 3. Shri. T. Vishwanathan, Learned Counsel, appearing on behalf of M/s. Global Ceramics, submitted that the onus to classify goods is upon importer, and that the description and details were properly mentioned by the supplier on their documents and records. He also submitted that no penalty is called for against the overseas supplier in the given set of facts and circumstances. 4. Shri Tara Praksah, Learned Deputy Commissioner (AR) on the other hand reiterated the findings of the impugned order. He also submitted that the product literature shows that some process was being undertaken on the mineral product and hence, it was calcined and as such out of the purview of classification under CTH 2510. 5. We have carefully considered the submissions made by both the sides and perused the records. We find that in the present case, the issue to be decided is whether the imported goods are Natural Calcium Phosphate and are classifiable under CTH 2510 or under CTH 2835 and whether any consequent duty, interest and penal liabilities follow or other....
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....hermal decomposition of crystalline structure of the product and hence, the said product was not calcined at all. In light of the above as well as the HSN Explanatory Notes, which are a safe guide to decide Customs classification issues, the goods do not appear to be omitted from the purview of Chapter 25 at all. 5.7 Further, it has come out during the course of cross examination of Shri. V. Suresh JT Director(NFSG), CRCL, New Delhi had specifically accepted that the product was moist in nature when being retested and also stated that it was not hygroscopic in nature, and the LOI was found to be less than 1%. If the sample was already calcined, the same would not have any inherent moisture or would not have any Loss on Ignition as such, and this also shows that it could not have been in calcined state even otherwise. 5.8 Also, all subsequent imports, which were subjected to provisional assessment, were subjected to testing / retesting and based on ad verbatim identical reports by CRCL, all classifications have been finally approved under Chapter 25 only, and not under Chapter 28. There is no reason why a different view should be taken in the intervening period for the present....
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....personally penalise either the Directors of importer, or CHA or the other importers for having engaged in communication with overseas supplier to put proper and correct description of goods on documents, or for that matter, the overseas supplier itself, since the goods were always classifiable under CTH 2510 as natural mineral itself all along. 6. Accordingly, the impugned orders are quashed and set aside and the appeals are allowed with consequential relief. (Pronounced in the open court on 24.01.2024) ============= Document 1 Chapter 31 Fertilisers 31 Notes. 1- This Chapter does not cover: (a) Animal blood of heading 05.11; (b) Separate chemically defined compounds (other than those answering to the descriptions in Note 2 (a), 3 (a), 4 (a) or 5 below); or (c) Cultured potassium chloride crystals (other than optical elements) weighing not less than 2.5 g each, of heading 38.24; optical elements of potassium chloride (heading 90.01) . 2- Heading 31.02 applies only to the following goods, provided that they are not put up in the forms or packages described in heading 31.05: Goods which answer to one or other of the descriptions given....
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....ter may contain an added anti -dusting agent, provided that such addition This Chapter does not cover: Sublimed sulphur, precipitated sulphur or colloidal sulphur (heading 28.02); (b) Earth colours containing 70% or more by weight of combined iron evaluated as Fe;0; (heading 28.21) ; (c) Medicaments or other products of Chapter 30; (4) Perfumery, cosmetic or toilet preparations (Chapter 33); (e) Sets, curbstones or flagstones (heading 68.01); mosaic cubes or the like (heading 68.02); roofing, facing or damp course slates (heading 68.03); (0) Precious or semi-precious stones (heading 71.02 or 71.03); (g) Cultured crystals (other than optical elements) weighing not less than 2.5g each, of sodium chloride or of magnesium oxide , of heading 38.24; optical elements of sodium chloride or of magnesium oxide (heading 90.01); h) Billiard chalks (heading 95.04); or Writing or drawing chalks or tailors' chalks (heading 96.09). 1- Any products classifiable in heading 25.17 and any other heading of the Chapter are to be classified beading 25.17. 4-Heading 25.30 applies, inter alia, to: vermiculite, perlite and chlorites, unexpanded,....
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....ing 25.23). (2) Specify conditions or processes which are admissible in those cases in addition to the allowed generally under Note 1 to this Chapter. For example, witherite (heading 25.10 siliceous fossil meals and similar siliceous earths (heading 25.12) and dolom calcined (dead-burned (sintered) or caustic-burned). In the case of dead-burned (sinter (heading 25.18) may be calcined ; magnesite and magnesia (heading 25.19) may be fused facilitate sintering. Similarly the materials of headings 25.06, 25.14, 25.15, 25.16, 25.18 magnesia, other oxides (e.g., iron oxide, chromium oxide) may have been added and 25.26 may be roughly trimmed or merely cut , by sawing or otherwise , into blocks slabs of a rectangular (including square) shape. to be classified in heading 25.17. When products are classifiable in heading 25.17 and any other heading of this Chapter, The Chapter excludes precious or semi-precious stones of Chapter 71. they are 25.10 25.10 - Natural calcium phosphates, natural aluminium calcium phosphates and phosphatic chalk. 2510.10 - Unground 2510.20 Ground This heading covers only apatite....
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.... water, releasing part of their water of crystallisation ong. Used as a water and descaling boilers, to clarify sugar and spirits, in tanning, in medicine, etc. us for dissolving metal oxides, in photography, as a detergent, for s pyrop0) Sodium diphosphates). Tetrasodium pyrophosphate (neutral in the preparation of detergents, of mixtures to prevent the coagulation of blood, of refrigerating products and of disinfectants , in cheese manufacture, etc. Disodium dihydrogenpyrophosphate ( acid diphosphate) (NaHPO), which has the same appearance, is used as a flux in enamelling, for precipitating the milk, and in the preparation of baking powder, of certain malted milk powcasein from Non-hygroscopic white powder, soluble in water. Used in or to preserve foodstuffs. , etc. (2) Sodium triphosphate (NasPsOo) (pentasodium triphosphate also known as sodium ripolyphosphate). White crystalline powder; used as a water-softener, as an emulsifier (0 Sodium metaphosphates (basic formula ( NaPOs)). Two metaphosphates meeting this description are sodium cyclo-triphosphate and sodium cyclo- tetrapho....
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.... calcium phosphate (ie., ordinary calcium phosphate) trisodium orthophosphate by means of calcium chloride in presence of ammonia. hydrochloric acid and then with sodium hydroxide, or by precipitating a solution of dyeing; to clarify syrups; for pickling metals; in the manufacture of glass or pottery; in and medicaments (e.g. the preparation of phosphorus glycerophosphates), etc. Natural calcium phosphate is excluded (heading 25.10). lactophosphates, (5) Aluminium phosphate. Artificial aluminium orthophosphate (AIPO.), prepared from powder. Used as a flux in ceramics, for sizing silk (with tin oxide), and in the preparation trisodium orthophosphate and aluminium sulphate, occurs as a white, greyish or pinkish of dental cements. Natural aluminium phosphate (wavellite) is excluded (heading 25.30). (6) Manganese phosphate (Mn(PO): 7H,O). Obtained from manganous chloride and phosphoric acid. It is a purple powder which, alone or mixed with other products constitutes Nuremberg violet, used by artists and in enamels. Associated with ammonium phosphate, it forms Burgundy violet. (7) Cobalt phosphates. Tricobalt bis (orth....
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....under CTH 2510.2030 of the First Schecule to the Customs Tariff Act, 1975. There is no doubt that the tost report of Centra Excise and Customs Laboratory. Vadodara. has mentioned, in no uncertain terms that the somple tested ov. trom in respect of the impugned bill of entry aro calcined calcium riphosphate, and have also categorically mentioned that these goods ar other than goods falling under CTSH 253526. The reason why th's specific heading is mentioned. Il appears to me. is that earlier in 2009. the same. goods were classifed under CTSH 28352690. Tals classification has been ruled out, though without assigning any reason. In fact, it is settled law that Chemical Examiner's not required to comment on coverage or otherwise, of any tested sample under any Chapter Heading, or in other words, the Chemical Examiner has to give the fincings of the test in respect of chemical and physical properties of sample and composition and not the classification of a product. In the case of Shalimar Paints Ltd. v/s Commissioner of Control Excise. Calcutta 200 (134) EL.T. 285 (fr.- Kolkata) it is held by ine Hon'ble 4.53/49-47 .6 C fribunal ....
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....ce of to a high temperature but below its menting point. This material have been only heated a roasted to remove the Impurities and moisture content. if this material is calcined. Its crystalline structure changes and material becomes milky white. Calcined products cannot be used in the manufacture of Fire Bone China since I would not have any plasticity to bind together all the row material." (have examined the CTSH 33C3 and the associated Chapter Nole 3 (d)) to Chapter 31. It specificaly mentions: Heading 3:03 applies to goods "natural phosphates of heading 2510, calcined or further heat freated than for removal of impurifies." This also means the: the process of calcination/hea treatment is cossible out ONLY up to the stage of removal of impurities. In other words, if there is a complete ca cination, the goods will fall under CTSH 3103 and if it is only up to removal of impurities: it will continue to fall under CTSH 2510. For clarity, I also refer to the Chapter Note 1 of Chapter 25, which reccis as under: 4.2. "Excoot where their context or Note 4 to this chapter otherwise requires. the heading of this chapter cover only produ....
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....es. Thus, it would be Inappropriate to jump to conclusion without understanding the scope of the oxpression 'calcined' used in the tast reports. 6.3. Normally, the end-use of the product is not relevant independently, to determine classification. But as a coroborative fact, it does have relevance. It has beer contended by the appellant that a Fury in manufacture of spy calcined (where thermal decomposition takes clace] calcium phosphate is fine bone chine tableware as it loses its, binding properties. If we calcine the earthen soil, as it is done for making en the properties change to such an extent that the cowdered called earth would not have binding properties. This is a good example. theoretically. Since the goods in cuastion are not imported under end-use conation, I cannot use this as sole evidence. Yet, importer being a ceramies manufacturer, it does make sense in conjunction with other evidences tho! thay would not import a completely calcined calcium phosphate. 6.4. The Importer has also produced the copy of following Bills of Entry of their own imports of Nnova Shova, Mumaci, where classification of the produc....