TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 934
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.... material is RPO. For the above purpose, the appellants had imported RPO through various ports such as JNPT, Nhava Sheva; Pipavav and Mundra sea ports. During the disputed period i.e. from 19.01.2017 to 09.08.2019, the appellants had imported 'Rubber Processing Oil' under 79 Bills of Entry (B/Es) at the above ports by classifying it under Customs Tariff Item (CTI) 2707 9900 and claimed concessional rate of Basic Customs Duty (BCD) at 2.5% under Serial No. 121E of Notification No. 12/2012-Customd dated 17.03.2012 and Serial No. 143 of Notification No. 50/2017-Customs dated 30.06.2017. Directorate of Revenue Intelligence, Mumbai Zonal Unit (DRI) had developed an intelligence that the appellants had mis-declared the classification of the imported RPO and had alleged that such imported goods are correctly classifiable under CTH 2713 9000 with applicable BCD at the rate of 5% vide Sr. No. 130 of Notification No.12/2012-Customs dated 17.03.2012 and Sr. No. 147 of Notification No.50/2017-Customs dated 30.06.2017. After conducting detailed investigation including examination of various documents, test reports relating to such imports, DRI had issued Show Cause Notice (SCN) No. DRI/MZU/CI/I....
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....her, in the said impugned order, the learned adjudicating authority had re-assessed the finally assessed B/Es and provisionally assessed B/Es separately; he had also confirmed the differential duty demanded in the SCN dated 23.02.2021, under Section 28(4) of the Customs Act, 1962 by invoking the extended period for the finally assessed B/Es for an amount of Rs. 2,25,49,590/-and under Section 18 ibid for provisionally assessed B/Es for an amount of Rs.64,34,234/-. He further confiscated the impugned goods under Section 111(m) ibid and imposed Redemption fine of Rs.10,00,00,000/- in lieu of confiscation goods under Section 125(1) ibid and also imposed penalties on the appellants under Section 112(a) ibid. Furthermore, he had also appropriated Rs.54,83,549/- deposited by the appellants during the course of investigation against the above confirmation of the demands. Being aggrieved with the impugned order dated 07.12.2024, the appellants have filed this appeal before the Tribunal. 3.1 Learned Advocate for the appellants at the outset submitted that the impugned order dated 07.12.2024, passed by the Common Adjudicating Authority in adjudication of the SCN dated 23.02.2021 had been pas....
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.... dispute, the appellants had carried out in-house testing of 64 B/Es, in which the aromatic constituents by weight are indicated as more than 50% and such test reports have been submitted during the investigation, and adjudication. An illustrative case of such B/E and test report has also been provided as part of the appeal papers in the form of Annexure-1. Therefore, he stated that these facts have not been properly considered by the adjudicating authority. 4.3 Learned Advocate further submitted that in terms of Chapter Note 2 to Chapter 27, similar oils and products with the predominance of aromatic constituents obtained by the distillation of low temperature coal tar or other mineral tar, by the 'stripping' of coal gas, by the processing of petroleum or by any other process, would be specifically included under CTH 2707. Therefore, he claimed that the classification adopted by them in the disputed B/Es are correctly declared. In this regard, he placed reliance on the following: (i) CBIC Circular No.1189 dated 13.02.1989 (ii) Aspam Petro energy Pvt. Ltd. Vs. Commissioner of Customs, Kandla - 2024 (389) E.L.T. 103 (Tri. - Ahmd.) (iii) Amit Petrolubes Pvt. Ltd. Vs. Com....
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....peals filed by the appellants may be dismissed. 6. We have heard both sides, examined the case records and the additional submissions made during the course of hearing, paper books submitted by both sides. 7. The issue involved herein is to decide the following: (i) determine the classification of goods imported by the appellants as to whether, the same merits classification under Customs Tariff Heading (CTI) 2707 9900 described as 'Rubber Processing Oil (RPO)' as claimed by the appellants; or, is it classifiable under CTI 2713 9000 described as 'Other residues of Petroleum oils or oils obtained from bituminous minerals' as determined in the impugned order, for deciding on appropriate levy of customs duty on the basis of appropriate classification of goods; and (ii) to decide whether confirmation of differential duty demanded under Section 28(4) of the Customs Act, 1962 is legally sustainable: and (iii) to decide whether confiscation of impugned goods; imposition of redemption fine in lieu of such confiscation and consequent imposition of penalty on the appellants are legally sustainable. The disputed period involved in this case is from 19.01.2017 to 09.....
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....uty of Rs.46,85,539/- along with applicable interest of Rs.7,98,010/- during the time of investigation and informed the same to the department vide their letters dated 04.12.2019 and 09.12.2019. (vi) The appellants had claimed that in respect of imports under 64 B/Es, the in-house test reports indicate that the aromatic constituents are more than 50%; however, only a specimen copy of such in-house test report was submitted as Annexure-1. (vii) In respect of 5 previous test reports of JNCH, Nhava Sheva; 4 previous test reports of Pipava port and 1 previous test report of Mundra port, it is indicated in all such test reports that the imported goods are either having aromatic constituents of less than 50% or that they are not confirming to the standard specifications of IS 15078-2001 prescribed for Petroleum based Process Oil for Rubber Industry. (viii) In respect of imports under 25 B/Es in JNCH, Nhava Sheva port, DRI investigation had claimed that the appellants had indicated their previous test reports as the basis for claiming the concessional duty of 2.5% BCD; however, these previous test reports specifically indicate that the aromatic constituents are less than 50%. Since th....
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....that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished articles has the essential character of the complete or finished article. It shall also be taken to include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), presented unassembled or disassembled. (b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. 3. When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or mo....
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.... unless the context otherwise requires. THE GENERAL EXPLANATORY NOTES 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 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 "-" or "--". 2. The abbreviation "%" in any column of this Schedule in relation to the rate of duty indicates that duty on the goods to which the entry relates shall be charged on the basis of the value of the goods as defined in section 14 of the Customs Act, 1962 (52 of 1962), the duty being equal to such ....
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....ral guidelines for classification of goods under the appropriate subheading. In the event of the goods cannot be classified solely on the basis of GIR 1, and if the headings and legal notes do not otherwise require, the remaining Rules 2 to 6 may then be applied in sequential order. Further, while classifying goods, the foremost consideration is the 'statutory definition', if any, provided in the Customs Tariff Act. In the absence of any statutory definition, or any guideline provided by HS explanatory notes, the trade parlance theory is to be adopted for ascertaining as to how the goods are known in the common trade parlance for the purpose of dealing between the parties. 8.4 In the case before us, the contending classification of imported goods discussed in the impugned order are either under CTI 2707 9900 described as 'Rubber Process Oil (RPO)' as claimed by the appellants; or under CTI 2713 9000 described as 'Other residues of Petroleum oils or oils obtained from bituminous minerals' of the First Schedule to the Customs Tariff Act, 1975. Further, in terms of Chapter Note 2 to Chapter 27, statutory definition of 'Petroleum oils and oils obtained from bituminous minerals....
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.... classification of the impugned goods. The relevant headings and their tariff entries in the First Schedule to the Customs Tariff Act, 1975 of contending Chapter headings 2707 and 2713 are extracted as below: "CHAPTER 27 Mineral fuels, mineral oils and products of their distillation; bituminous substances; mineral waxes xxx xxx xxx xxx Chapter Heading Description of goods (1) (2) 2707 Oils and other products of the distillation of high temperature coal tar; similar products in which the weight of the aromatic constituents exceeds that of the non-aromatic constituents 2707 10 00 - Benzol (benzene) 2707 20 00 - Toluol (toluene) 2707 30 00 - Xylol (xylenes) 2707 40 00 - Naphthelene 2707 50 00 - Other aromatic hydro-carbon mixtures of which 65% or more by volume (including losses) distils at 250°C by the ISO 3405 method (equivalent to the ASTM D 86 method) - Other : 2707 91 00 -- Creosote oils 2707 99 00 -- Other" And "Chapter Heading Description of goods (1) (2) 2713 Petroleum coke, petroleum bitume....
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....vers within its scope and ambit, mainly of three broad categories of goods: (i) first one i.e., "Petroleum coke" covered under CTH 2713 11 and 2713 12; (ii) the second one i.e., "Petroleum bitumen" covered under CTI 2713 2000; and (iii) the third one i.e., "Other residues of petroleum oils" covered under CTI 2713 9000. 9.3 Broadly, we find that the chapter heading 2707 deals with "various types of oils and other products of the distillation of high/low temperature Coal tar or other mineral tar". These are obtained by the 'stripping' of coal gas by the processing of petroleum or by any other process. Whereas, Chapter heading 2713 deals with products of residue which are "petroleum coke, petroleum bitumen or other residues of petroleum oils" usually obtained cracking or destructive distillation or as a residue of the distillation of crude petroleum. The scope of coverage of Chapter heading 2707 is largely based on the aromatic constituents of the products of the distillation of coal tar, where the wight of the aromatic constituents exceeds that of the non-aromatic constituents, in order to get covered under this heading. Further, where the non-aromatic ....
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....d circular is given below: "Circular No. 11/89, dated 13-2-1989 F. No. 87/2/88-CX.3 Government of India Ministry of Finance (Department of Revenue) New Delhi Subject : Classification under Heading No. 27.10 or 27.13 or 27.07. A doubt has been raised as to whether Speciality oils (Processed Oils) manufactured out of furfural extracts are classifiable under subheading No. 2719.50 or 2713.39/2713.30 or under sub-heading No. 2707.90 of the Schedule to the Central Excise Tariff Act, 1985. 2. The matter came up for discussion at the South Zone Tariff-cumGeneral Conference of Collectors of Central Excise held at Bangalore on 4th and 5th October, 1988. It was pointed out at the Conference that Speciality oils (Processed Oils) under dispute contained aromatic constituents predominately over non-aromatic constituents and therefore, the said goods cannot be classified under Heading No. 27.10 in view of the provisions of Chapter Note 2 of Chapter 27 of CET. In such case, the Conference viewed that the goods in question would be appropriately classifiable under sub-heading No. 2713.39 during the period from 28-2-1986 to 29-2-1988 and under sub-heading No. 2713.30 from....
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....mum of 55˚C, being the standard prescribed under BIS for RPO/Petroleum oil for use in Rubber industry. Therefore,compliance with the above IS standard specifications would also support the classification of RPO accordingly. 9.6 On perusal of the records of the case, it transpires that the Rubber Process Oil (RPO) imported by the appellants were subjected to chemical testing by drawing samples of the imported consignment at the port of import, and the goods are assessed to customs duty on the basis of such test reports. In case of where the goods are being cleared out of customs control pending receipt of test report, then the goods are assessed by the Customs Apprising Group of the jurisdictional Customs Comissionerate on 'provisional' basis by taking necessary test bond with suitable undertaking to pay differential duty on demand, when the imported goods are finally assessed on the basis of the test report under Section 18(2) of the Customs Act, 1962. 9.7 It also transpires from the records that the appellants had submitted vide their letters dated 06.11.2019, 04.12.2019 and 09.12.2019 that in respect of 18 B/Es imported through JNCH port, the aromatics constituents w....
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....ernment of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs New Delhi *** Subject : Detailed guidelines for re-testing of samples - Regarding. World Trade Organization (WTO) negotiated Trade Facilitation Agreement (TFA), which aims at simplifying the trade processes and bringing down barriers to trade has come into force w.e.f. 22nd February, 2017. India is a signatory to this agreement. 2. India has placed a number of trade related measures negotiated under the TFA in Category A. Article 5.3.1 envisages granting an opportunity for a second test in case the first test result of a sample taken upon arrival of goods declared for importation shows an adverse finding. Further Article 5.3.3 makes it obligatory to consider the result of the second test, if any, for the release and clearance of goods, and, if appropriate, may accept the results of such test. The aforementioned Articles have been placed in category A. In order to have uniformity in approach among the field formations with regard to re-testing of samples, the following procedure is prescribed : a. Customs officers may draw the samples from impor....
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....d not be resorted to in every case of variation between the first test and re-test results. g. The facility of re-testing, is a trade facilitation measure, which should generally not be denied in the ordinary course. However, there might arise circumstances where the customs officer is constrained to deny the re-testing facility. Board expects that such denial would be occasional and on reasonable grounds to be recorded in writing. h. Where the re-testing procedure is done at the instance of the department instead of the importer, the above procedure shall be followed mutatis mutandis. 3. Difficulties, if any, in implementation of this circular, should be brought to the notice of the Board." 9.9 In the present case, for the imported consignments, test reports are required to be issued by the Customs Laboratory, at the respective ports of import, where samples have been drawn for testing by the customs officers at the time of assessment. Further, the procedure for sampling of import/export goods, storage of samples, arranging for tests, recording of test reports and related matters at Jawaharlal Nehru Custom House have been prescribed in Public Notice No. 05/2011 dated 21....
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.... 244 dtd. 17.07.2017 8. 2899390 18.08.2017 244 dtd. 17.07.2017 9. 3165378 08.09.2017 244 dtd. 17.07.2017 10. 4750174 10.01.2018 1649 dtd. 10.01.2018 11. 6424914 17.05.2018 450 dtd. 18.05.2018 12. 7413095 28.07.2018 1326 dtd. 30.07.2018 13. 7695935 18.08.2018 1683 dtd. 24.08.2018 14. 8050942 14.09.2018 450 dtd. 18.05.2018 15. 8424090 11.10.2018 450 dtd. 18.05.2018 16. 8562186 22.10.2018 450 dtd. 18.05.2018 17. 9260759 14.12.2018 1326 dtd. 30.07.2018 18. 9437535 27.12.2018 1326 dtd. 30.07.2018 19. 9670379 16.01.2019 1326 dtd. 30.07.2018 20. 9924449 04.02.2019 1326 dtd. 30.07.2018 21. 2698381 03.04.2019 1326 dtd. 30.07.2018 22. 3348446 22.05.2019 1326 dtd. 30.07.2018 23. 3456252 30.05.2019 1326 dtd. 30.07.2018 24. 3869739 29.06.2019 1326 dtd. 30.07.2018 25. 4437407 09.08.2019 Not Specified 10.1 On the issue of classification of the impugned goods, other than those covered in the above B/Es, the learned adjudicating authority had come to the conclusion that the goods are classifiable under CTI 2713 9000 on the basis of the following findings as recorded in the i....
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....6945/2014Mum in respect of Sah Petroleums Ltd. Vs. Commissioner of Customs (Import), JNCH, Nhava Sheva, [2017 (358) E.L.T. 483 (Tri. Mumbai)]. It is pertinent to mention here that aforesaid company M/s Sah Petroleums Ltd., which was one of the Appellants in the above case, was subsequently taken over by new promoters Shri Ayush Goel and Smt. Deepa Goel and renamed as M/s GP Petroleums Ltd. Thus, the aforesaid order of the Hon'ble Tribunal was in respect of the Noticee involved in the instant case itself. Merely changing the importer's name and its promoters would not alter the significant law point i.e., the classification of RPO decided by the Hon'ble CESTAT in the importer's own case. The classification of RPO will remain unchanged, given that the goods were of identical/similar nature imported from same supplier and country and declared with same description as Bills of Entry by M/s Sah Petroleums Ltd., and there has been no change in the nature of imported goods, relevant Chapter Heading and Custom laws." However, we find that the procedure prescribed in Circular No.30/2017Customs dated 18.07.2017 for re-testing as a measure of trade facilitation, either on pro....
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....Director of CRCL, Customs House Laboratory at Kandla have given test repo0rts of 5 samples tested by them relating to the following B/Es viz. one B/E No. 8088043 dt. 05.01.2017 of Mundra port and four B/E Nos. 4485292 dt. 20.12.2017; 5688855 dt. 22.03.2018; 8703844 dt.01.112018;4493164 dt.14.08.2019 of Pipavav port, where the Aniline point has been indicated as 44°C, 42° C, 42° C, 43° C and 43° C respectively, where the maximum permissible as per IS15098:2001 in 55°C. In the above factual position, it is not known how the learned adjudicating authority had come to a conclusion that the aromatic constituents of the imported RPO was less than 50% as recorded in his findings at para 4.10 of the impugned order, the extract of which is given in paragraph 9.1 above. 10.3 In the impugned order, the adjudicating authority had confirmed the demands proposed in the SCN by invoking extended period of limitation, on the ground that the appellants have made misleading declarations, misclassified the imported goods and claimed ineligible exemption benefits. From the facts on record, it clearly transpires that in respect of all the imported goods, the appellants have file....
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....ded for 'assessment' under Section 2(2) of the Customs Act, 1962 (substituted w.e.f. 29.03.2018), it includes determination of the dutiability of goods and the amount of duty so payable, with reference to the tariff classification of such goods as determined in accordance with the provisions of the Customs Tariff Act and exemption or concession of duty, consequent upon any notification issued under the Customs statute for the time being in force. Further, under Section 17 ibid, the proper officer of Customs may verify the self-assessment made by the importer and where it is found on verification, examination or testing of the goods, that the self-assessment is not done correctly, he may re-assess the duty leviable on such goods. The above legal provisions clearly enunciate that determination of proper duty payable on the import goods on verification of self-assessment made by an importer / appellants under Section 17(2) ibid and if the self-assessment is not done correctly, then the requirement of proper officer to make re-assessment under sub-sections (4)&(5) of Section 17 ibid, being the functions to be carried out as per the legal provisions of the Customs statute. Hence, ....
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....esaid illustrative B/E and the test bond where Bank Guarantee executed is first accepted at the time of provisional assessment and later Bond/Bank Guarantee cancelled by the Department is extracted and given below: 10.7 Since, the demand of duty under Section 18 ibid on re-assessment of provisionally assessed B/Es did not place on record any specific chemical test report(s) as evidence in support of the fact that non-aromatic constituents exceeds that of aromatic constituents and further had outrightly rejected the in-house test reports produced by the appellants, the basis for its re-assessment under CTI 2713 9000 and consequent demand of differential duty under Section 18 ibid, in our considered opinion does not stand the scrutiny of law. 11.1 On the issue of adjudication of the SCN within the prescribed period under Section 28(9) ibid, the appellants had placed an argument that the order of the Chief Commissioner of Customs, Zone-II dated 22.03.2021 was not provided to them and they were not given an opportunity of hearing. The relevant sub-section (9) of Section 28 ibid is extracted and given below: "(9) The proper officer shall determine the a....
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....fresh opportunities for personal hearing to the appellants on 08.11.2023, 07.12.2023. As on both occasions, the appellants had requested for adjournment of the hearing; one another opportunity was given on 27.12.2023, and the personal hearing was attended by Shri K.S. Mishra, Advocate and Shri Prashant Kubal, Consultant on behalf of the appellants. 11.2 On the above issue, the legal provisions as it existed prior to 29.03.2018, provide that the time limit is prescribed under sub-section (9) of Section 28 ibid would apply for adjudication of the notice is 'where it is possible to do so'. However, subsequent to the amendment introduced in the Finance Act, 2018 w.e.f. 29.03.2018, in cases involving extended period, the immediate senior officer in rank/superior authority to the adjudicating authority, having regard to the circumstances under which adjudication of the SCN could not be done within the prescribed period of one year, has been empowered to extend the time limit for a further period of one another year. In the present case, the aforesaid requirement of Section 28(9) ibid have been duly followed by the adjudicating authority. We also find that the Tribunal ....
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....missionerates of Central Excise and other similarly situated officers are proper officers for the purposes of Section 28 and are competent to issue show cause notice thereunder. Therefore, any challenge made to the maintainability of such show cause notices issued by this particular class of officers, on the ground of want of jurisdiction for not being the proper officer, which remain pending before various forums, shall now be dealt with in the manner specified in that judgement. In respect of appeals pending before the CESTAT, it was decided by the Apex Court that they shall now be decided in accordance with the observations made in that decision. Besides the above discussions on the power or authority to issue SCN, which has been finally settled by the Hon'ble Supreme Court, we do not find any infirmity in the impugned order passed in adjudication of the SCN in the present case, as the said adjudication order has been passed on 07.02.2024 much prior to the last date of 30.03.2024. 12.1 On the identical issues of classification of Rubber Process Oil, demand of duty by invoking extended period, we find that the Coordinate Bench of the Tribunal in the case of Sah Petroleums ....
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....at high temperature and treated with solvents vaiious types of lubricating oil are obtained and the remaining extracts are derived from the treatment of lubricating oil with selected solvents. These residues or extracts are not similar to those oils as listed in 27.07 namely benzol (benzene), toluol (toluene) xylol (xylenes), solvent naptha, naphthalene oils and crude naphthalene, anthracene oils and crude anthracene, phenolic oils (phenols, cresols, xylenols etc), pyridine, quinolone and acridine basis and creosote oils. Unless it is similar oil, the raw RPO would not merit classification under Chapter sub-heading 27.07. Being "other residues of petroleum oils or of oils obtained from bituminous materials" will merit classification under Chapter Heading 2713. The classification of RPO under chapter heading 2713.39/2713.30 was recommended by the Deputy Chief Chemist and same was accepted by C.B.E. & C. in its circular No. 11/1989, dated 13-2-1989. We also find that the CRCL in its communication dated 23-8-2013 has also stated that RPO are mainly aromatic extracts which are produced during the refining of lubricating oil base stocks and that such aromatic extracts derived from treat....
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....Appellants by invoking extended period of time are also not sustainable in view of our above observation and findings." 12.2 In this regard, we find that the department having been aggrieved with the above order of the Tribunal in the case of Sah Petroleums Ltd., have filed Civil Appeal before the Hon'ble Supreme Court. In the said appeals filed by the Principal Commissioner of Customs (Import-II), Mumbai, in a bunch cases involving M/s Gandhar Oil Refinery (I) Ltd., Sah Petroleums Ltd. and others, the Hon'ble Supreme Court of India in Civil Appeal Diary No. 22552 of 2017 vide judgement delivered on 08.09.2017 have held that the judgement of the Tribunal does not warrant any interference and dismissed the appeals filed by the department. However, the question of law pertaining classification of goods were left open. The relevant extract of the said judgement is given below: IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S). OF 2017 (Diary No (s) . 22552/2017 PRINCIPAL COMMISSIONER CUSTOMS (IMPORT ii)-MUMBAI Appellant (s) VERSUS GANDHAR OIL REFINERY (I) LTD. ETC.  ....