TaxTMI 
TaxTMI 
2025 (1) TMI 747
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....ed AFM from M/s Kumkang Kind Co Ltd, Republic of Korea (South Korea) and classified the same under CTH 76109090 and also claimed nil rate of basic customs duty vide S.No.610 of Customs Notification No. 152/2009 dt.31.12.2009. The said consignment was cleared by the Customs as per the claimed classification and notification benefit. However, subsequent to the clearance, DRI Officers had issued a SCN, based on certain intelligence that the appellants have misclassified their product under CTH 76109090 whereas the said product is rightly classifiable under CTH 84806000. Further, based on the statement recorded and submission of certain documents including, inter alia, purchase orders of the appellant placed on their supplier, the department felt that since the essential character of the imported goods are assembling moulds used for moulding concrete in the construction activity, the same would be more appropriately classifiable under CTH 84806000 and not under CTH 76109090, as claimed. Therefore, essentially they felt that the imported goods were basically assemblies identifiable as parts of article of Chapter 84 and since they are more akin to moulds, it would be appropriately classi....
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....ation, therefore, their objections put forth were more of an afterthought only after issue of subject notice. h) That coffering panels intended for pouring concrete, having the character of mould (CTH 8480) are excluded from the provisions of CTH 7610. 4. Therefore, essentially the Adjudicating Authority has held that the imported AFM as having essential character of mould since function of a mould is to retain the material in pre-determined shape until it sets in the intended shape and not of an aluminium structure envisaged in CTH 7610. 5. Learned Advocate for the appellant submits that in view of the judgment in the case of Alcove Construction Pvt Ltd Vs CC, Kolkata [Final Order No.76894/2024 dt.12.09.2024], the classification of imported AFM is no longer res integra and it has been held by the Tribunal that the same would be righty classifiable under CTH 76109010. He further submits that even otherwise, careful analysis of the applicable CTH and the proposed CTH read with HSN explanatory notes and the actual nature of goods would indicate that they are more appropriately classifiable under CTH 76109010 and not under CTH 84806000. He further submits that the depar....
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....ovisions and HSN explanatory notes to support that it has essential character of mould for moulding concrete. 8. Heard both sides and perused the records. 9. The core issue to be decided in this matter is whether imported AFM is classifiable under CTH 76109010 or CTH 84806000. From the documents and evidence on record, it appears that the appellants had placed order for AFM for the proposed APTIDCO project. Therefore, there is no denial that the items were specifically designed to suit the end use of the appellant i.e., construction of building and related structures. However, before we take up the statutory provisions of classification under competing headings, for the ease of reference, the said headings are reproduced below:- Tariff Item Description Unit Rate of duty Standard Preferential Areas 7610 Aluminium structures (excluding Prefabricated buildings of heading 9406) and parts of structures (for Example, Bridges and bridge-sections, towers, lattice masts, Roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, balustrades, pillars and columns); aluminium plates, rods, profiles, tubes and the like, prep....
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....d moulding patterns, with certain exceptions. It also covers all moulds (whether or not hinged and whether used by hand or in presses or moulding machines) which are of a kind used for moulding the following materials into blanks or finished articles: i) Metals and metal carbides ii) Glass (including fused quartz or other fused silica) or mineral materials such as ceramic pastes, cement, plaster or concrete. iii) Rubber or plastics. In general, the essential function of a mould is to retain the material in a predetermined shape while it sets; some moulds, also exert a certain pressure on the material. But the heading excludes stamping dies of heading 82.07 since they shape the material solely by means of a powerful blow or compression (e.g., dies for stamping out sheet-metal goods). 11. The department is relying on the explanatory note which explains about mould for mineral materials. This has been described as "moulds for moulding concrete, cement or asbestos-cement goods (tubes, vats, paving stones, flags, chimney-pots, banisters, architectural ornaments, wall, floor or roof slabs, etc.) and also moulds for making prefabricated construction ....
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....ngs. While formwork is a temporary structure used to shape and hold concrete until it sets in and it basically provides support and maintains the structure during the construction process and are typically removed after concrete sets in, leaving behind the desired structure. Whereas, in case of mould, they are reusable pattern or cavity used to shape material and can make multiple copies and can be permanent also depending on the application. Therefore, while formwork is primarily used in construction to shape and support structures temporarily, the moulds are used in creating multiple copies of desired shape and design often used for casting smaller elements like decorative features or precast components. The reliance placed by the Adjudicating Authority that it is customized and cannot be used or moved to other location is also misplaced. It is nobody's case that these formworks remain even after concretes were set in and that they were not removed and kept elsewhere for a similar use at a later date, if required. 15. CTH 7610 covers, inter alia, aluminium structures and by way of example, it includes, inter alia, roofing frameworks. The roofing framework is therefore covered ....
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....A complete immovable building structure cannot be called a blank or an article. The illustration also made it clear that mould would create blanks, articles, etc., including cement slabs but not the entire building or structure. 16. We also observe that the case has been made out on the basis of information and statement given by the appellant, wherein, they had, inter alia, also stated that they had paid up the differential duty in respect of 15 Bills of Entry to avoid interest burden, etc. However, in respect of remaining 5 Bills of Entry, which is the subject matter of this appeal, they are contesting that the same as they felt it is appropriately classifiable under CTH 7610 on the grounds that essential character of the goods is imparted by the aluminium and these items are useful for one time. Moreover, the suppliers have classified the item under CTH 7610 and that the custom officers have not denied the said classification, as claimed by them. Thereafter, the Adjudicating Authority, by relying on purchase contracts and statutory provisions under Chapter 76 and Chapter 84 as well as HSN explanatory notes, made an observation that since the goods are predesigned and custom m....
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....rposes including construction purposes. Whereas, in the case of impugned goods, they are acting as a support for setting of the concrete and the structure once set in stays where it is and only the plates are removed. Therefore, there is stark difference between this product and the mould and therefore, AFM cannot be treated as if it is a mould for moulding in building or a house. It is nobody's case that these were used for making parts which were later assembled for construction of house rather from the facts, it is apparent that these were used as shutters and support, in situ, where the concrete gets set and immovable structures like houses, building, etc., emerge. 19. On the other hand, CTH 7610 covers, inter alia, all kinds of aluminium structure except for the exclusion provided, i.e., mould falling under Chapter 84. Therefore, even if there is a mould made out of 100% aluminium also, it would be not classifiable under CTH 7610 and it will be falling under Chapter 84. However, when the product itself is not a mould then the exclusion will not be applicable. The same heading also includes aluminium plates, rods, profiles, tubes and the like, prepared for use in structures.....
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....ue has established conditions before raising and justifying a demand. Similar is the case in roping all persons within the tax net, in which event the State is to prove the liability of the persons, as may arise within the strict language of the law. There cannot be any implied concept either in identifying the subject of the tax or person liable to pay tax. That is why it is often said that subject is not to be taxed, unless the words of the statute unambiguously impose a tax on him, that one has to look merely at the words clearly stated and that there is no room for any intendment nor presumption as to tax. It is only the letter of the law and not the spirit of the law to guide the interpreter to decide the liability to tax ignoring any amount of hardship and eschewing equity in taxation. Thus, we may emphatically reiterate that if in the event of ambiguity in a taxation liability statute, the benefit should go to the subject/assessee. But, in a situation where the tax exemption has to be interpreted, the benefit of doubt should go in favour of the revenue, the aforesaid conclusions are expounded only as a prelude to better understand jurisprudential basis for our conclusion. We....
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....ble. 22. Another ground taken by the department is that they will get excluded because they are coffering panels and therefore, they would not be included in the purview of CTH 7610. We find that coffering panels are basically decorative ceiling treatment that is used for creating a grid like pattern on ceiling and by the very description, as discussed supra, Aluminium Formwork cannot be considered as coffering panels and therefore, it does not get excluded from CTH 7610. 23. We also find that the reliance has been placed by the learned Advocate on the recent judgment of the coordinate bench at Kolkata, where the similar item has been held to be classifiable under CTH 76109010 and therefore, the ratio of the said judgment is applicable to the present factual matrix as the facts are more or less identical. Further, we also note that in this case, the Bill of Entry, which was cleared under self assessment, has not been challenged by the Revenue. Therefore, in view of the judgment in the case Shri Rajib Saha Vs CC (Prev), Shillong (supra), the demand is not sustainable on this count also. It is also noted that there is some force in the submissions made by the appellants that th....