TaxTMI 
TaxTMI 
2024 (10) TMI 320
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....vailable to the appellants being in excess of the permissible limit and seeking to recover the duty on DTA clearances; the allegations in the Show Cause Notice have been upheld vide impugned order dated 02.12.2011. Hence, this appeal. 2. Shri B.L. Narasimhan, assisted by Ms. Krati Singh and Mr. Aman Singh, learned Counsels for the appellants, submits that as per Chapter Note 1(g) of Chapter 74, the products "Plates, Sheets and Strip" has to be flat surfaced; the cross-section of the product must be rectangular, with or without rounded corners; the item must possess uniform thickness, the item must not exceed 1/10th of the width and the item does not assume character of any other articles or products of other heading in order to be classified under heading 7409; as the coin blanks are geometrically cylindrical, cross-section forms a rectangle; it is evident from the drawing obtained from the Government Mint. He submits that Revenue disputes the classification on the ground that the cross-section is not rectangular and that the coin blanks are used for a specific purpose i.e making coins at the Government Mint; therefore, it must be classified under articles of copper i.e. CETH 74....
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....nefit is not available to the appellant and that the restriction of percentage applies to each category of export product; the said Circular has been considered by the Tribunal in the case of M/s Axiom Cordages and it has been held that the percentage entitlement should be seen from the value of specific products exported and not from the value of a single product. He relies on the following cases: • Nat Steel Equipment Private Ltd. - 1988 (34) ELT 8 (SC). • Suryavansi Spinning Mills Ltd. - 2016 (343) ELT 940 (Tri. Del.) • Axiom Cordages Ltd. - 2021-TIOL-289 (Tri. Mum.) • Hindustan Lever Ltd. - 2011 (268) ELT 252 (CESTAT Chennai) • B.R. Steel Products Pvt. Ltd. - 2021 (378) ELT 356 (Tri. Mumbai) 4. Learned Counsel for the appellants further submits that once Education Cess is added to the Customs Duties to arrive at the aggregate value of Customs Duties, in terms of proviso to Section 3 (1) of the Central Excise Act, 1944, the question of charging Education Cess once again does not arise, as held by the Tribunal in the case of M/s Sarla Performance Fibres Ltd. - 2010 (253) ELT 203 (Tri. Ahm.); the Adjudicating Auth....
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....ze and character having a specific use in the manufacture of coins. Learned Authorized Representative submits that the case of Neel Metal Products Ltd. and Colts Auto Pvt. Ltd. (both supra) are of no help to the appellant as the case involves classification of motor vehicle parts. 8. Learned Authorized Representative submits as far as the DTA entitlement is concerned that CBEC vide Circulars No.85/95 dated 26.07.1995 and No.07/2006 dated 13.01.2006 clarified that only goods which are similar or which belong to the same class as the export goods are eligible for DTA exemption and that different items should be commercially interchangeable to be eligible for DTA sale. Copper Strips and blanks are two distinct and separate products and cannot be held to be either similar or commercially interchangeable. 9. Heard both sides and perused the records of the case. The issues, which require deliberation in the instant case, are (i) whether the classification of the impugned coin blanks should be under Tariff Heading 74094000 as claimed by the appellant or 7419 as alleged by the Department; (ii) whether copper strips and coin blanks constitute similar goods in order to avail benefit un....
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....9 --other 7419 99 10 ---Reservoirs, tanks, vats and similar containers of a capacity above 300L 7419 99 20 ---Articles of copper alloys electro-plated with nickel-silver 7419 99 30 ---Articles of brass 7419 99 40 ---Copper worked articles 7419 99 90 ---Other articles of copper 12. HSN Explanatory Notes to Heading 7419 are as follows: 74.19-Other articles of copper (+). 7419.10 Chain and parts thereof - Other: 7419.91 - -Cast, moulded, stamped or forged, but not further worked 7419.99 - -Other This heading covers all articles of copper other than those covered by the preceding headings of this Chapter or by Note I to Section XV, or articles specified or included in Chapter 82 or 83, or more specifically covered elsewhere in the Nomenclature. This heading covers, in particular: (1) Safety pins and other pins (excluding hatpins and other ornamental pins, and drawing pins), of copper, not elsewhere specified or included. (2) Reservoirs, tanks, vats and similar containers for any material, of copper, of any capacity, whether or not lined or heat-insulated, but not f....
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....s are punched out of straightened metal sheets and have the thickness as of a finished coin although slightly different diameter; thereafter, they are subjected to processes like annealing, washing & drying, upsetting, striking and bagging & packaging. We find that the coin blanks have already achieved the characteristics of coins and therefore, they cannot be categorized along with plates and strips. They have attained the essential character of a coin and therefore, they cannot be classified in the same category as plates and strips. 14. We find that learned Commissioner has correctly held that: 6A.--- "The party is manufacturing Coin Blanks comprising of alloy consisting of copper, zinc and nickel. These are manufactured by melting the virgin metal in the electrical induction furnace, converting them into strips and then after removing the imperfections by scalping and the rolling in the mill to reduce the strip thickness to 3.04 mm, slitting the side edges to remove the side cracks, polishing and punching of the same to get the required shape of coin blanks." 6D. From the perusal of the items listed in the above-mentioned headings along with the ex....
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....ture as discussed above along with the end use of the coin blanks, it is clearly evident that the coin blanks are having the exact shape, size, outline and character of an article and thus are definite articles of copper and are appropriately classifiable under Chapter heading 7419 of Central Excise Tariff Act, 1985. 15. In view of the above, we further find that by no stretch of imagination, the coin blanks cannot be classified along with plates and strips of copper as they have distinctive shape, size, character and use; whereas the plates and strips are in the nature of raw material, the coin blanks are near total manufactured item i.e. coins, except for the embossing or printing of the logo and value etc. on the coin blanks. We find that the cases relied upon by the appellants are of no use as the facts are different; the case of P. Chottalal Manufacturers & Exporters (supra) is about the classification of aluminum plates remaining after punching; dispute in the cases of Colts Auto Pvt. Ltd. and Neelmetal Products (both supra) is about whether the aluminum circles arising out of punching would merit classification as parts of automobiles; as the facts are different, the rati....
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....lants to clear strips in DTA over and above the permissible limit, it is the contention of the Department that the appellants have cleared goods worth of Rs.6969.98 Lakhs in DTA whereas the permissible limit was Rs.6953.72 Lakhs as permitted by the Development Commissioner. The Adjudicating Authority records that the appellants have accepted their mistake and undertook to pay the differential duty on excess clearances along with interest. However, the dispute remains regarding the entitlement to clear each of the products. Policy Circular issued by the Ministry of Commerce clarifies that flexibility is provided by allowing DTA sale of a specific product up to 75% of the FOB value of export of the specific product within the overall entitlement of 50% of total FOB value of exports which can be cleared at concessional rate of duties. The Circular provides that within the DTA entitlement any of the specified product can be exported up to a value of 75% (later changed to 90%) subject to the overall limit of 50% of FOB Value in DTA. The appellants contend that as the strips and blanks manufactured by them are similar products, the entitlement cannot be looked into considering the export....
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....ific products. However, this is subject to overall entitlement of 50% of FOB value of exports. The policy is clear in saying that the units may sell "any" of these products into DTA and subject to 90% of export value of export of the specific "products." In our understanding, a plain meaning of words is that any of the products manufactured or exported can be sold in DTA. The only restriction that appears to be that the value of DTA clearances of any of the products should not exceed 90% of FOB value of export of the specific products. The catch here seems to be on the word "products" whereas the policy mentions the same to be specified products. The department wants to read the same down as "product." As seen above, Tribunal has taken a categorical stand on the interpretation of this provision in the case of measure ABI Showatech India, ABI Turnamatics and M/s Consolidated Coin (all supra), in favour of the appellants. IN the case of ABI Showatech the export value of bearing housing machines was only about 25 thousands, whereas value of DTA clearances was about 7 crores. The same was held to be valid. 19. We find that EOUs are given a facility to clear the goods in DTA, a....
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.... only the measure is customs duty. There is no dispute about this contention. However, we are not convinced about the correctness of the calculation made by the learned advocate. As already observed by us with regard to the nature of education cess, it is a surcharge and is in the nature of enhancement by the quantum of education cess under Section 94 of Finance Act. Afterwards, to arrive at additional customs duty, what is required to be worked out is equallant excise duty levialbe. Therefore, since education cess enhances the quantum of excuse duty, additional customs duty at its own level has to be enhanced by the quantum of education cess. Since the aggregate of both the duties is again considered as customs duties in total, the addition of education cess again becomes necessary. Therefore, we do not find any logic in the submissions made by the learned advocate. Even though the contention that goods are manufactured in India is accepted, the fact remains that right from the inception of the 100% EOU scheme, the EOUs are treated differently as we have observed elsewhere. They are treated differently for various purposes under different provisions of excise law that being the po....