TaxTMI 
TaxTMI 
2023 (12) TMI 1441
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....the manufacture of electrical contacts, precious metal chemicals and catalysts, precious metal gauzes, platinum laboratory apparatus, precious metal spinnerets, precious metal bushings and other precious metal products falling under Chapter 71 of the Central Excise Tariff, and for this purpose import "platinum sponge". The appellants have classified the imported goods described as 'Platinum Metal or Platinum Sponge' under Customs Tariff Item (CTI) 7110 11 10 as platinum in 'unwrought form' and claimed exemption from payment of whole of additional duty of customs (CVD) under Sl. No.25 of Notification No. 05/06-C.E. dated 01.03.2006 / Sr. No.193 of Notification No. 12/2012- C.E., dated 17.03.2012. However, the department had objected to such classification of imported goods and availment of exemption, by treating such goods as classifiable under CTI 7110 11 20 as platinum in "powder form" and thus contending that the imported goods are not eligible for the above exemption benefit. The dispute relates to imports made during the period from 15.10.2009 to 10.06.2014. 2.3 The appellants have contended that the imported platinum sponge is obtained by refining/recycling/recovering mater....
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....of any consignment in question was done at the time of imports. Therefore, they stated that the customs department had failed to discharge the burden while changing the classification of the imported goods under CTI 7110 11 20. [H.P.L Chemicals Vs. CCE -2006 (197) ELT 324 (SC).] 2.6 Learned Advocate also submitted that "platinum sponge" is the first form of platinum which emerges during the refining process. If that is so, then the suggestion that this first form of metal ('sponge') is not unfinished or semi-finished form of metal, whereas subsequent forms of metal obtained viz., ingots, bars, blocks, slabs, billets, shots, pellets, rods, sheets, foils and wire, etc., are considered to be "unfinished or semi- finished" from of metal, is totally incorrect and does not stand to logic. In fact, when sponge is considered to be primary form of metal, it necessarily implies that it is unfinished or semi-finished form of metal. 2.7 They further stated that Notifications No. 05/06-C.E. dated 01.03.2006 and No. 12/2012-C.E., dated 17.03.2012 had granted exemption to 'Silver, platinum, palladium, rhodium, iridium, osmium and ruthenium in their primary forms, that is to say, any unfinis....
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....l (Adjudication) Vs. Johnson Matthey India - 2023 (5) TMI 1133 in favour of the assessee and held that exemption from CVD is correctly available to the imported platinum sponge. In this regard, they also stated that the Show Cause Notice dated 25.07.14 issued to the appellants in the present case is verbatim similar to the SCN dated 29.04.2015 issued to the other importer (Johnson Matthey) in the above case. Hence, on the basis of the order passed by he Tribunal in the above case and considering that the basis for issue of both the SCNs being identical i.e., 'imported platinum sponge' is platinum in powder form, the adjudged demands in this case liable to be set aside. Further, they stated that department has not challenged the above decision in Johnson Matthey India's case and therefore, the same has attained finality and the present case cannot be decided in a different manner. 3. On the other hand, learned Authorised Representative for Revenue reiterated the findings of the adjudicating authority in the impugned order, and submitted that during the investigation itself, various officials of the appellants had clearly stated that the imported goods are in 'sponge' form and hen....
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....62), are specified in the First and Second Schedules. Section 3. Levy of additional duty equal to excise duty, sales tax, local taxes and other charges. (1) Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article : Provided that in case of any alcoholic liquor for human consumption imported into India, the Central Government may, by notification in the Official Gazette, specify the rate of additional duty having regard to the excise duty for the time being leviable on a like alcoholic liquor produced or manufactured in different States or, if a like alcoholic liquor is not produced or manufactured in any State, then, having regard to the excise duty which would be leviable for the time being in different States on the class or descripti....
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....ose which equally merit consideration. xxx xxx xxx xxx 6. For legal purposes, the classification of goods in the sub-headings of a heading shall be determined according to the terms of those sub-headings and any related sub-heading Notes and, mutatis mutandis, to the above rules, on the understanding that only sub- headings at the same level are comparable. For the purposes of this rule the relative Section and Chapter Notes also apply, unless the context otherwise requires. THE GENERAL EXPLANATORY NOTES (GEN) TO IMPORT TARIFF 1. Where in column (2) of this Schedule, the description of an article or group of articles under a heading is preceded by "-", the said article or group of articles shall be taken to be a sub- classification of the article or group of articles covered by the said heading. Where, however, the description of an article or group of articles is preceded by "- -", the said article or group of articles shall be taken to be a sub-classification of the immediately preceding description of the article or group of articles which has "-". where the description of an article or group of articles is preceded by "---" or "----", the sai....
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....the said Table subject to the relevant conditions specified in the Annexure to this notification, and the Condition number of which is referred to in the corresponding entry in column (5) of the Table aforesaid. Explanation. - For the purposes of this notification, the rates specified in column (4) of the said Table are ad valorem rates, unless otherwise specified. Table (1) (2) (3) (4) (5) S. No. Chapter or heading or subheading or tariff item of the First Schedule Description of excisable goods Rate Condition No. xx xx xxx xx xx 25 71 Silver, platinum, palladium, rhodium, iridium, osmium and ruthenium in their primary forms, that is to say, any unfinished or semi-finished form including ingots, bars, blocks, slabs, billets, shots, pellets, rods, sheets, foils and wires. Nil - xx xx xxx xx xx" "Notification No. 12/2012-C.E. dated Exemption and effective rates of duty for specified goods of Chapters 1 to 98 In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944) and in supersession of (i) notification of the Gover....
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....ion shall apply to the goods specified against serial number 296 and 297 of the said Table after the 31st day of March, 2013. Explanation 1. - For the purposes of this notification, the rates specified in column (4) of the said Table are ad valorem rates, unless otherwise specified. Explanation 2. - For the purposes of this notification, "brand name" means a brand name, whether registered or not, that is to say, a name or a mark, such as a symbol, monogram, label, signature or invented words or any writing which is used in relation to a product, for the purpose of indicating, or so as to indicate, a connection in the course of trade between the product and a person using such name or mark with or without any indication of the identity of that person. Table (1) (2) (3) (4) (5) S. No. Chapter or heading or subheading or tariff item of the First Schedule Description of excisable goods Rate Condition No. xx xx xxx xx xx 193 71 Platinum, palladium, rhodium, iridium, osmium and ruthenium in their primary forms, that is to say, any unfinished or semi-finished form including ingots, bars, blocks, slabs, billets, sho....
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....basic fact, for the legal purpose of classification and eligibility to the exemption benefit. In view of the evidential facts for substantiating the case of denial of exemption benefit to the appellants and for the failure to establish the basic fact of fulfilling the requirements of sub-heading note 1 of chapter 71 as discussed above, the impugned order classifying the impugned goods as platinum in powder form and for denying the exemption benefit, is not legally sustainable. 8.3 The impugned order in denying the exemption benefit for the imports and in confirmation of the adjudged demands, have relied upon Rule 3C of GIR and the fact that 'powder form' is not the one of the forms specified in the aforesaid exemption notification. In this regard, we find that in a situation where the classification of the goods cannot be decided under rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, then rule 3 apply. Further, in respect of goods which are put up in sets for retail sale, when they cannot be classified based on rule 3(b) based on the essential character of the material or component which gives their essential character, then ado....
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....of the said CBEC circular issued on 19.11.1998 is extracted and given below: "Circular No. 431/64/98-CX, dated 19-11-1998 F. No. 332/82/98-TRU Government of India Ministry of Finance (Department of Revenue) New Delhi Subject : Catalysts of precious metals falling under Chapter 71 - Scope of exemption in Notification No. 5/98-C.E. - Regarding. I am directed to state that representations have been received from the trade, regarding the scope of exemption available to precious metals and articles of precious metals such as ingots, bars, crucibles, foils, dishes, wires, wire gauges etc., under Sl. No. 193 or 194 of Notification No. 5/98-C.E., dated 2-6-1998. It has been represented that the benefit of exemption under Sl. No. 193 or 194 of Notification No. 5/98-C.E., dated 2-6-1998 is being denied on the ground that the above goods of precious metals when re-made, re-conditioned, re-fabricated etc., and used as catalysts, are subject to excise duty at the rate of 18% of the value of materials, if any added and the amount charged for such manufacture under Sl. No. 36 of the same notification. References have also been received from some field formations i....
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....ed, in these serial numbers. As regards, platinum products are concerned, the scope of the entry is same. In such context, the CBEC had specifically clarified that the exemption benefit shall not be denied to goods of precious metals such as in the form of catalysts, ingots, powder and sponge falling under Chapter 71. Thus, it follows that the field formations implementing the classification of goods, assessment to duty including exemption to be extended to various goods as per notifications issued under the law, have to follow the instructions issued under Section 37B of the Central Excise Act, 1944 and/or Section 151A of the Customs Act, 1962, for the purpose of uniformity in implementation of the law. Therefore, we are of the opinion, that a different view cannot be taken from the legal position of the exemption, as clarified in the circular issued by the CBEC. Accordingly, we find that the impugned order, insofar as it had denied the exemption benefit to the impugned goods of platinum, in the present case is not legally sustainable. 10.1 In this regard, we find that the present appeal was considered for early hearing and was allowed so, vide Miscellaneous Order No. M/85620/2....
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....s metals etc. (Chapter 71). - In Chapter 71, no changes have been made in the statutory rates. The present Chapter Note 4 of Chapter 71 has been amended to align the same with the corresponding Chapter Note in the Customs Tariff. This is purely for the purpose of enabling easier classification of alloys of precious metals. The existing full exemptions from excise duty on a number of items would continue by means of a new notification. The present partial exemption to articles of precious metals re-made, reprocessed, etc. from old articles has been extended unconditionally to all articles of such precious metals without any conditions. (Notification No. 39/94-C.E.). In view of the above, Notification Nos. 228/88, 53/86, 313/86 and 137/89 have been rescinded. (Notification No. 64/94-C.E)." 'NOTES EXPLAINING IMPORTANT CHANGES MADE IN EXCISE DUTY 31.1 Notification No. 39/94-CE is being rescinded (Notification No. 71/95-CE refers). However, the Nil rates for certain articles of precious metals, ornaments of gold or silver, strips, wires, etc. of silver and gold, imitation jewellery and precious and semi-precious stones, etc. are being continued (Notification No. 54/ 95....
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....tification granted partial exemption, inter alia to catalysts, ingot, powder and sponge inter alia, of platinum. SL.No.31 of Notification 4/97 dated 1.3.1997 corresponded to SI.No.28.14 of Notification 8/96. SL.No.164 of Notification 4/97 dt.1.3.1997 corresponded with Sl.No.712 of Notification 8/96 dt.23.7.96. 4.3 Sl No 194 of Notification No 05/1998-CE dated 02.06.1998 read as follows: 194 71 Silver, platinum, palladium, rhodium, iridium, osmium and ruthenium in their primary forms, that is to say, any unfinished or semi-finished form including ingots, bars, blocks, slabs, billets, shots, pellets, rods, sheets, foils and wires Nil 4.4 CBEC had issued Circular No. 431/64/98-CX dated 19/11/1998 clarifying the scope of entries in Notification No 05/1998-CE. The text of the Circular is reproduced below: "Subject: Catalysts of precious metals falling under Chapter 71 - scope of exemption in notification No. 05/98-C.E. I am directed to state that representations have been received from the trade, retarding the scope of exemption available to previous, metals and articles of precious metals such as ingots, bars, crucibles, foils, dishes, wires, w....
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....was continued in the subsequent exemption notifications as detailed in table below: Notification No/ Date S N Entry from the Notification 6/2000-CE dt 01.03.2000 186 Silver, platinum, palladium, rhodium, iridium, osmium and ruthenium in their primary forms, 3/2001-CE dt 189 01.03.2001 that is to say, any unfinished or semi-finished form including ingots, bars, blocks, slabs, billets, shots, pellets, rods, sheets, foils and wires 6/2002-CE dt 01.03.2002 172 5/2006-CE dt 01.03.2006 25 12/2012-CE dt 17.03.2012 193 Platinum, palladium, rhodium, iridium, osmium and ruthenium in their primary forms, that is to say, any unfinished or semi-finished form including ingots, bars, blocks, slabs, billets, shots, pellets, rods, sheets, foils and wires. 4.6 The same entry continued till the supersession of Notification No 12/2012 dt 17.03.2012, till 30.06.2017, at the time of introduction of GST. The above clearly explains that from 1994 onwards the notification has been issued exempting the impugned goods and the wording 'used' in thenotification then till the notification under consideration remains the same. The....
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....utory provisions has really no existence in law. 7. As noted in the order of reference the correct position vis-`-vis the observations in para 11 of Dhiren Chemical's case (supra) has been stated in Kalyani's case (supra). If the submissions of learned counsel for the assessee are accepted, it would mean that there is no scope for filing an appeal. In that case, there is no question of a decision of this Court on the point being rendered. Obviously, the assessee will not file an appeal questioning the view expressed vis-à-vis the circular. It has to be the revenue authority who has to question that. To lay content with the circular would mean that the valuable right of challenge would be denied to him and there would be no scope for adjudication by the High Court or the Supreme Court. That would be against very concept of majesty of law declared by this Court and the binding effect in terms of Article 141 of the Constitution.' 4.8 Nothing has been brought forth in the appeal or during the arguments to show that there was any subsequent change in the wording of the Notification, or a pronouncement of Hon'ble Supreme Court or a Hon'ble High Court has ....