TaxTMI 
TaxTMI 
2024 (10) TMI 1716
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....Rough Dolomite Block White" under CTH 25181000 and "Dolomite Slabs/ Dolomite 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....
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....cord. Neither the SCN nor the impugned order has given any reference to the said 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 repo....
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.... • Commr. Of Cus. Vs. Magus Metals Pvt. Ltd., 2017 (355) E.L.T. 323 (S.C.) 3.7 He further submits that 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 ....
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....te that predominantly, imported goods are nothing but dolomite. There is question of suppression or mis-declaration in the 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 labo....
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....19 (367) ELT 660 (Tri. - Ahmd.) • Jai Research Foundation Vs CCE, 2019 (25) GSTL 473 (T) • BaharAgrochem& Feeds Pvt. Ltd Vs CCE, 2012 (277) E.L.T. 382 (T) 3.18 He submits that since goods are also not liable to confiscation, thus penalty and redemption fine is not 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 ....
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....ods is dolomite and not marble. 5.4 We find that department has relied upon statement of Mr. Sajith Kumar to reclassify the goods. It is settled position of law that statement cannot be relied upon to determine classification of goods. In fact in this case, composition of goods shows it is dolomite 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 extrac....
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.... 22 different types of chemicals. The Department drew samples only from two types of chemicals. It was held that test reports can be made applicable only for the two products for which the samples were drawn and not to the rest of the products. Following the ratio of the above decision we fully agree with the contention 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 fabric....
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....ically attracted, more so in the teeth of the petitioner's contentions that the goods fell within Item 28, in support whereof he produced an expert opinion and cited standard technical books. All this was totally ignored. If it was the department's stand that the goods fell within Item 22(4)(a), which in fact was the stand of the department as is manifest from 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 vi....
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....for the Revenue to allege and substantiate, at least prima facie, as to why a particular item is taxable under a particular Tariff entry. The initial burden is on the Revenue to substantiate the assertion. I have come across a few cases wherein only assertions are made that a particular item will fall under a particular entry in the Tariff, without referring to any material 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 do....
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....ing process. Recently, the Supreme Court in Empire Industries Ltd. v. Union of India - 1985 (20) E.L.T. 179 reiterated that any process or processes creating a new commodity commercially known as a distinct and separate commodity having its own character, use and name would be 'manufacture'. It is settled law that in a case of taxation the burden of proving that the necessary ingredients 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 a....
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....toms duty as per Annexure-A1 and A2 to SCN as recorded in para 26 of impugned order is confirmed along with interest as same is not contested by appellant. Customs duty demand under Annexure B and C to SCN as recorded in para 26 of impugned order is set aside as same is beyond limitation period as extended period is not invocable in the present case. Redemption fine and penalty is not sustainable and the same is accordingly set aside. Penalty on Mr. Sajith Kumar, import executive is also not imposable. 6. The Appeal No. 10261/2024 is partly allowed in the above terms and Appeal No. 10262/2024 is allowed, with consequential relief, if any, in accordance with law. (Pronounced in the open court on 25.10.2024) ============= Document 1 Characteristics PHYSICAL & MECHANICAL PROPERTIES MINERALOGICAL COMPOSITION (% wt) CHEMICAL ANALYSIS (%% wt) Apparent Density (kg/m2) Seen Calcite 8,0 CaC 32,00 Open Porosity (% vel] -Dolomite 92,0 19.60 Water Absortion (% wi) Quartz 0.20 Dycomie Modulus Of Elasticity (GPa) FeD] Compressive Strength (MPa) 1 137.7 Chlorite Al203 Flaxual Sircaght (MP:) Cando Feldspurs K2% Compressive Strength Afler Frost Resistance Cycle....
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....ineralogical analysis DOLOMITE PHYSICAL & MECHANICAL PROPERTIES APPARENT SPECIFIC OPEN POROSITY WATER ABSORPTION. DYNAMIC MODULUS COMPRESSIVE COEFFICIENT, % vol : COEFFICIENT, % wt . OF ELASTICITY, GPa STRENGTH, MPa (DEN) DENSITY, kg/m3 (DIN 52102) (DIN 52102) (DIN 52103} 0,1: (DIN 1048 Teil 5) 52105) 2346 0,4 30 125 COMPRESSIVE FLEXURAL STRENGTH, MPa (DIN STRENGTH AFTER ABRASION RESISTANCE, mini (DIN 52108) IMPACT STRENGTH, FREEZE/THAW CYCLES, MPa (DIN 52104 & 52105} 55 cm (UN]-V 52112) 32.07.248.0) 18/9/20 K 3,51 55 MINERALÓGICAL COMPOSITION, % wt CALCITE 3.00 DOLOMITE À QUARTZ 97,00 MICAS CHLORITE FELDSPAR Fe OXIDES etc. EPIDOTE CHROMITE CLAY MINERALS SERPENTINE PYROXENES CHEMICAL ANALYSIS. % wt CHEMICAL ANALYSIS. % wt Ca0 34 MyO - 18,00 Si0, 0,50 FexQ) , 0,07 ALO: 0,12 K20 0,01 CHEMICAL ANALYSIS. % wt Ca0 34 Document 4 MINERALOGICAL ANALYSIS PHYSICAL & MECHANICAL PROPERTIES We declare that the materials under our invoice No. ...... are DOLOMITE according to the below mineralogical analysis DOLOMITE PHYSICAN & MECHANICAL PRO....
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....¿Ïτίο EN 12372), MPO Flexural strength under concentrated load (EN 12372), MPO 18.5 ΦοÏτίο θÏοÏσης στην οπή αγκÏÏωσης (EN 13364). N Breaking lood ot dowel hole (811 13364], N 2250 Αντίσταση σε Ï„Ïιβή (ΕΠ14157 - Î’). mm3 Abrasion resistance (EN 14157 - 8), mm3 24313 ΕνÎÏγεια θÏαÏσης (ΕΠ14158), Joule Rupture energy (EN 14158). Joule 4 Αντίσταση σε πογειό (ΕΠ12371): Αντοχή σε κόμψη υπό συγκεντÏωμÎνα φοÏτίο (EN | 2372) μετά από 48 κÏκλους αντίστασης σε παγετό. ΜΡα Frost resistance (Eri 12371): Flexural strength under concentrated food (EN) 12372) offer 48 frost resistonce cycles. MPo 15.7 τζ> τιμÎÏ‚ ανάι ενδοπÏ....
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....M.O / AV .* Φαινόμενη πυκνότητα (ΕΠ1936), kg/mη Apparent density (EN 1936). kg/m2 2840 Ανοικτό ποÏώδες (ΕΠ1936), % κ.ο. Open porosity (EN 1936). % vol, 0,7 ΥδαταποÏÏόφηση σε ατμοσφαιÏική nhÆ¡n (EN 13755). % K.B. Woler absorption at almospheric pressure (EN 13755]. % vat. 0.2 Αντοχή σε μονοαξονική Θλίψη (ΕΠ1926). ΜΡο Uniaxol compressive strength [EN ' 926). MPa 164 Αντοχή σε κάμψη υπό συγκεντÏωμÎνο φοÏτίο EN 12372}, MPa Hexurai strength under concentrated load (EN 12372), MPa 18.5 ΦοÏτίο θÏαÏσης στην οπή ογκÏÏωσης (EN 13364). N Breaking load at dowel hole (EN 13364). N 2250 Αντίσταση σε Ï„Ïιβή [ΕÎ....
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....‘ÎΑΛΥΣΗ (% σε ξηÏά ουσία) CHEMICAL ASSAY (% in dry substance) Al,Ο, Fe,O, Coo MgO MnD KO No,O LOI 40.10 30.40 19.90 00.05 0.26 1.38 46.31 ΤÏπος κατά ΕΠ12407 / ΕΠ12670: Δολομιτικό ΜάÏμαÏο ) ΟΡΥΚΤΟΛΟΓΙΚΗ ΣΥΣΤΑΣΗ MINERALOGICAL COMPOSITION Δολομίτης Dolomile 99% Ασβεστίτης Calcile 1% Ως επουσιώδη συμμετÎχουν ο μοσχοβίτης, ο φλογοπίτης, ο χαλαζίας και ο απατίτης. Document 7 small amount of Silica, Iron etc. No.1953 I) 03. 5052142 lated 25.09.2019 Nhava 3533/19-20 The sample is composed of Sheva Sea Gr I dated Calcium, Magnesium (Dolomite) Port 27.09.2019 together with traces of Iron and (Lab Siliceous matter....
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....hese Test Reports is summarised in the Table below: Sr. No. Bill of Entry No. and date which imported Port from No. and date of sample Test Report Laboratory . Name of Result of Test Reports 01. 3103627 dated 04.09.2017 Adani Hazira Port Test Report dated 13.11.2017 (of Sample No.122) Geological Survey of India Nagpur. dolomite with subordinate calcite, The sample is mainly composed of Density 2.85 g/cm3, Hardness of 3-3.5 (Moho Hardness scale). Based on above physical, optical and limited chemical properties of rock sample interpreted as 'Dolomite'. As per Test Report of Analysis dated 27.11.2017 of sample, CaO content = 32.54%, MgO content = 19.51% and LOI content= 42.24%. 02. 3103648 dated 04.09.2017 Adani Hazira Port Test Report dated 13.11.2017 (of Sample No.123) Geological Survey India, Nagpur. of The sample is mainly composed of dolomite with subordinate calcite, Density 2.85 g/cm3, Hardness of 3-3.5 (Moho Hardness scale). Based on above physical, optical and limited chemical properties of rock sample interpreted as 'Dolomite'. As per Test Report of Analysis dated 27.11.2017 of sample, CaO content = 33.45%, MgO content = 18.48% and LOI content= 43.02%. 0....