TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 1411
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....al under CTH 27040030 claiming the exemption of Basic Customs Duty @0% in terms of SI No. 125 of N.F. No. 12/2012 -CUS dated 17.03.2012. The Bill of Entry was assessed provisionally. 5. The said Bill of Entry was assessed finally on 22.07.2022 classifying the imported under CTH 27040030, but without the benefit of exemption under SI No. 125 of N.F.No. 12/2012 CUS dated 17.03.2012 as per classification issued by CBEC Circular No. 56/2003-Cus dated 27.06.2003 based on the load port chemical report which is as under : Moisture (as received basis) % 14.88 Ash (as received basis)% 11.60 Ash (dry basis) % 13.63 Volatile Matter (as received basis) % 1.19 Volatile Matter (dry basis) % 1.40 Sulphur (as received basis) % 0.84 Sulphur (dry basis)% 0.99 Fixed Carbon % 0 Size (0-10 mm) % 18.74 6. The said order was challenged by the Respondent before Ld. Commissioner (Appeal) and who examined the issue and passed the order on merit as under : "5.1. The central point of dispute in this appeal is the classification of the imported goods, described as "Coke Breeze" ---whether to be treated as "metallurgical coke" or otherwise and eligibility of benefit of exemption of basic c....
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....ould not be more that 18.75% of the demand confirmed under the Order-in-Original. 5.4. That the appellant has contended that the department has decided against the appellant mainly relying on Board's Circular No. 56/2003 -Cus dated 27.06.2003 issued under F. No. 528/50/2003 -Cus (TU). The said Circular states that coke breeze should be treated as "process waste' and be allowed exemption to the extent of 5% of the total weight of the metallurgical coke. In penultimate para of the Circular No. 56/2003 -Cus dated 27.06.2003, it has been left to the AC/DC to enquire where amount of coke breeze is more than 5% and decide on merit. In the instant case, since percentage of materials having size (0-10mm) was 18.74% so exemption has been denied. It has not been stated in the Order-in-Original as to whether presence of 18.74% of 1-10 mm size changed the essential character of Metallurgical Coke. The Note 3(b) of the General Rules for the Interpretation of Schedule to Customs Tariff, says in case of Mixture, the classification has to be determined on the basis of essential character. The presence of 18.74% of 1-10 mm size does not change the essential character of Metallurgical Coke and hen....
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....ed circumstances, the same has to be done in the manner provided in the act and not according to the whims and fancies of the Department. As per Section 18 of the said Act, goods can be assessed provisionally pending production of information/documents or completion of test/enquiry if the exporter or importer, as the case may be, furnishes such bond/security as the proper officer deems fit for the payment of the deficiency, if any, as may accrue after finalization of the assessment. In the Order-in-Original, nothing has been stated as to why the said order has been passed after more than eight years and what are new facts/documents came to knowledge of the department. Also, provisional duty has not been adjusted from the Bond in the Order-in-Original. I find force in the above contention and observed that the lower authority could see from load port chemical test report enclosed with the B/E the presence of 18.74 % of 1-10 mm size of coke and so provisional assessment could have been finalize much earlier specially when the benefit of exemption has been denied for that reason only. 5.6. That the appellant has submitted it is not in dispute that the appellant's B/E dated 11.02.201....
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....ue and submits that the Ld. Commissioner (Appeal) erred by admitting Respondent's contention that "the context under which the impugned Circular No. 56/2003 -Cus dated 27.06.2003 was issued specifically for "Metallurgical coke when imported by a manufacturer of pig iron or steel using a blast furnace or COREX technology'. The context of the applicability of the Notification in respect of the imported item under the impugned Bill of Entry was altogether different, in as much as, the impugned exemption under SL. No. 125 of notification No. 12/2012 -Cus was for the import of metallurgical coke, without any further qualification (unlike in the former notification) and hence, is not eligible for exemption under this entry of the notification", therefore, the impugned order is to be set aside. 10. Heard the Ld. Authorized Representative and examined the impugned order. 11. As stated herein above the Ld. Commissioner (Appeal) has examined the issue that whether "Coke Breeze" is to be treated Metallurgical coke or otherwise and is eligible for benefit of exemption in terms of Sl. No. 125 of Notification No. 12/2012 Customs dated 17.03.2005 or not and observed as above. On going through t....
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....notification of said Regulation of 2018, neither the Section 18 nor any other provisions of the Act and/or the Rules framed there under provided for any time frame for finalization of provisional assessment. That being so, Courts & Tribunals held that provisional assessment should be finalized within a reasonable time. Issue as to what should be the reasonable time in the absence of statutory period prescribed in the Act for taking any action was considered by Hon'ble the Supreme Court in the case of State of Punjab v. Bhatinda District Co-op. Milk P. Union Limited (2007 (217) ELT. 325 (S.C.)], wherein it was opined that five years would be the reasonable period in the absence of any time prescribed in the Act. Apparently in order to remove such anomaly with regard to 'reasonable time, Section 18(1A) was inserted and so also the Regulation of 2018 was notified. After the said Regulation of 2018 came in to force, the statute is authoritatively clear that the provisional assessment under Section 18 "shall" be finalized within two months of receipt of all the documents or information required/requisitioned or receipt of chemical or other test reports or receipt of enquiry/inve....