TaxTMI 
TaxTMI 
TaxTMI 
2024 (10) TMI 1716
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....te Commercial Slabs" under CTH 68022900. DRI initiated investigation in respect of imports of VOLAKAS and THASSOS i.e. dolomite blocks and slabs from various foreign suppliers such as Marble Sachanas S.A. and Costamar G & Co., Greece across India. After investigation Show Cause Notice dated 21.04.2024 was issued to appellant. Similar shows cause notices were also issued to other importers of dolomite blocks. It is case of department that appellant have mis-classified and mis-declared the imported goods as dolomite blocks and slabs. According to department, imported goods are rough marble blocks and marble slabs. It is alleged by department that "Rough Marble Blocks" are correctly classifiable under CTH 2515 12 10 and "Polished Marble Slabs" are classifiable under CTH 68022190. During course of investigation some consignments of dolomite blocks and dolomite slabs imported by appellant vide certain bills of entry, the samples there of were sent for testing by DRI and based on said test reports SCN was issued for reclassification of said live consignments and also for past imports for which goods were not tested. The case of department is based on Test report issued by Geological Surv....
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....id analysis reports issued by foreign suppliers which clearly records content of dolomite in the imported goods as 92 % to 99%. On the other hand department has relied upon inconclusive test reports of geological survey of India, Jaipur which does not even provides for content of dolomite in the report. 3.2 He further submits that as part of common investigation, identical goods from very same foreign supplier (Marble Sachanas S A) to other importers in India were tested by other customs laboratories of India including Geological survey of India, Nagpur and concluded that imported goods are dolomite, further, after relying upon said test reports, it was held to be dolomite by Hon'ble Cestat in case of Nitco limited Vs Commissioner of customs, Ahmedabad in appeal No. 10277 of 2023 wherein Hon'ble Cestat, Ahmedabad in identical case has decided the classification of dolomite blocks from the same foreign supplier under CTH 2518. The said decision covers the very same issue in connected investigation wherein major foreign suppliers and the imported goods are common. 3.3 He further submits that Test reports and query response relied upon by department are inconclusive, contradictory a....
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....at the onus to prove that the goods were classifiable under CTH 251512110 (blocks)/CTH 68022190 (for slabs) was upon the department. Unless the said onus is discharged beyond reasonable doubt, the duty cannot be demanded from the Appellant. Thus, in the present case, department has not discharged onus. 3.8 He further submits that the department misinterpreted emails from Mr. Sajith Kumar, twisting the context to support their case. The emails merely clarified the correct customs classification for dolomite, not a misdeclaration of goods. The email has not communicated that the documents be amended for the purpose of mis-declaration and that Marble be replaced with Dolomite. It merely states that the correct CTH for Dolomite was 25181000 or 25182000. Drawing adverse inferences from the said email is uncalled for and is not sustainable. 3.9 He further submits nomenclature or trade name are not the material factors that decide the nature or classification of the goods imported. The material factor that has been i.e, the report's technical data, which shows a mineral composition of 93% dolomite and presence of MgOamdCaO in the chemical composition, was ignored by the department, ....
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....he present case. Thus, extended period under section 28(4) of Customs Act is not invokable in the present case. Further, as issue pertains to classification of goods, which is issue of interpretation of law. Thus, extended period cannot be invoked on issue of classification of goods. 3.13 He further submits that without prejudice to above submissions, present test reports taken for seized goods cannot be applied to post imports for which no samples were drawn or on testing was conducted. Further, foreign suppliers analysis reports clearly provide dolomite as 92% to 99%. It is settled position of law that each Bill of entry is a separate assessment and test report of one bill of entry cannot be made applicable to the goods imported under another bill of entry. Each consignment must be assessed separately, especially for natural mined rocks, where properties vary significantly. Further, foreign suppliers analysis reports clearly provides dolomite as 92% to 99%. Further, goods from very same foreign suppliers were tested and found as dolomite by other customs laboratories and Geological survey of India, Nagpur. He relies upon following decision : * Shalimar Paints Ltd. v. Commissio....
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....imposable in present case. On the basis of above submission, penalty on Mr.Sajith Kumar, import executive is also not imposable. 4 Shri Girish Nair, learned Authorized Representative appearing on behalf of the revenue reiterates the finding of the impugned order and submitted that appellant have mis-classified the goods. He also relied upon website wherein thassos is mentioned as marble. He also relied upon email exchanges between supplier and appellant to allege that appellant have mis-declared the imported goods as dolomite blocks /slabs. 5. We have carefully gone through the submissions made by both sides and perused the case records. The present dispute relates to correct classification of imported dolomite blocks and slabs. Appellant are not challenging demand of customs duty for within 2 years (Annexure A1 and A2 to SCN). They are only challenging demand of customs duty raised for extended period (Annexure B and C to SCN) and penalty on appellant (Rs. 4,39,22,685/-), and Rs. 5,00,000/- on Shree Sajhit Kumar and redemption fine amounting to Rs. 7,00,000/-. 5.1 We find that case can be decided without going into the issue of correct classification of imported goods as demand....
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....te and department has also not challenged composition of goods. 5.5 We find that there is no suppression by appellant in the present case. Analysis reports issued by foreign supplier are on record which clearly provides chemical and mineral analysis of imported goods i.e. dolomite is ranging from 92% to 99%. There is no dispute that predominantly, imported goods are nothing but dolomite. Some of illustrative analysis reports issued by foreign suppliers are as under: 5.6 We find that goods supplied by foreign supplier Marble Sachanas S A was tested by department in case of Nitco limited Vs Commissioner of customs, Ahmedabad in appeal No. 10277 of 2023 also and based on same parameter it was found that imported goods are dolomite in respect of imports by other importers. We have also recorded some of test reports in decision in case of Nitco Ltd. Some of test reports are extracted as under: Thus, from above test reports it is evident that even department has based on parameters of CaO and MgO has concluded that goods are dolomite. In present case also CaO is ranging from 32 to 36% and MgO is ranging from 17 to 19%. Thus, in present case, goods can be considered as dolomite. In any....
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.... of the ld. adv. that the test reports, if at all could be made applicable only to the 4 items in question to which it belonged to. The balance 26 products would be classified under Heading 27.15 on the basis of the declarations made by the appellant which is based upon their technical literature as well as the production records and for which the Revenue has not adduced any evidence to shift the classification to heading 32.10." Above decision was affirmed by Hon'ble Supreme court in case of [Commissioner v. Shalimar Paints Ltd. - 2002 (145) E.L.T. A242]. 5.8 In case of Commissioner of customs (preventive) Vs Marks Marketing P Ltd. Reported as 2017 (346) ELT 144 (Tri - Del) wherein Hon'ble Cestat held as under: "9. We find no merit in the above statement of the Revenue. Admittedly, the change in the classification of the present import of fabrics is based upon the test result by the chemical examiner whereas it is not disputed that no such test results were carried out in respect of previous imports. The law on the issue is well settled. The test reports of the samples drawn from a particular consignment cannot be applied to the previous consignments. Merely because the depo....
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.... the notice of demand dated 22nd December, 1973, the burden of proof was on the department, as observed by the Supreme Court in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Travancore & Tea Co., (1967) 20 Sales Tax Cases 529, at page 527- "......In all cases of taxation the burden of providing necessary ingredient laid down by law to justify taxation is upon the taxing authority........................". These observations were also followed by a Division Bench of this Court in Amar Dye Chem. Ltd. v. Union of India (1980) Cen-Cus 242D. This elementary and salutary rule of law has, in this case, been entirely ignored by the department." b) In the case of Heveacrumb Rubber (P) Ltd. Vs. Superintendent of Central Excise- 1983 (14) ELT 1685 the Hon'ble Kerala High Court has given the following view:- "3. It is interesting to note, that in the counter-affidavit filed by the respondents in paragraph 2, it is asserted that the products of the petitioner's factory are liable for Central Excise duty under Tariff Item 68. But in paragraph 3, it is stated that there is no adverse order passed by the respondents against the petitioner and in paragraph 7 it is re....
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....al or basis on which it is so surmised. The assessee is entitled to know and should be informed, the basis on which the Revenue proceeds to assess it, so that the opportunity given to the assessee will be real and effective and not illusory and a make believe. Without such a real opportunity being afforded, if on mere assertions, further documents and papers are obtained and assessments are made and liability saddled on the assessee making it a "fait accompli", it will be hard, unjust and improper. Steps so taken will be violative of the principles of natural justice. The assessing authority will be acting arbitrarily and not fairly. That the statutory authorities invested with power, which when exercised will effect persons with civil consequences, should act fairly, reasonably and in just manner, has been laid down repeatedly by courts. But it is regretable that such principles are given a go-bye in many cases and parties are driven to resort to this court under Article 226 of the Constitution. Notwithstanding the very detailed objections the respondents have not cared to dispose of Exts. P3 and P5, but continued to insist that the petitioner should furnish certain details asked ....
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....ents prescribed by the taxing provision are satisfied is entirely upon the taxing authority [Sandoz India Ltd. v. Union of India (Supra)]. It is, therefore, primarily for the taxing authority to satisfy the Court that formulation of pigment slurry is entirely distinct commodity having entirely distinct name, character and use as compared with the pigment itself." d) In the case of Collector of Central Excise Vs. Fertilizers and Chemicals, Travancore Ltd-1986 (24) ELT 388 the CEGAT special Bench New Delhi has given the following view:- "7. The Department has referred to the Fertilizer Control Order as well as the Glossary of Terms used in Fertilizer Trade and Industry (IS 1304-1980). But this has been an exercise in futility as reference to both these authorities only establishes that ammonium chloride of high technical purity as well as lower purity is fully covered in the broad specifications applicable to fertilizers. In this situation, the burden of proof that the product in question, is not a fertilizer is on the Department and they have failed to discharge this burden. In view of the definitions contained in the Fertilizer Control Order, Glossary of Terms used in the Fer....