TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 316
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....are operating an integrated steel plant at Raigarh, Chhattisgarh, which comprises of, inter alia, a coke oven plant, sinter plant, blast furnace and steel melting shop, etc. For the purpose of manufacturing of iron and steel, they are using iron ore lumps and fines, metallurgical coke, etc., as primary raw material. The appellants imported certain quantity of 'Chinese Coke Breeze' (hereinafter referred to as coke breeze), vide two Bills of Entry dt.21.12.2013 and 30.01.2014, which were initially assessed allowing them the exemption claimed under S.No.125 of Notification No.12/2012-Cus from Basic Customs duty & Additional duty leviable under sub-section (1) of section3 of Customs Tariff Act, 1975. However, on subsequent enquiry by the department, it was felt that the said goods falling under CTH 2704 0090, wherein, they had claimed the exemption, was not admissible as the said exemption notification was only available to 'metallurgical coke'. 3. The department, inter alia, relied on Board Circular No.56/2003 dt.27.06.2003, wherein, it was, inter alia, clarified that metallurgical coke and coke breeze are commercially understood as two different products. Thereafter, they made fur....
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.... 0.9 0.3 0.3 0.3 0.04 0.10 0.16 0.16 Shatter Index Min Over mm 50 (9) - - 90 85 80 75 - - - - - - - Over mm 12.5 (10) - - 96 95 94 92 - - - - - - - Micum Index +40 Min mm (11) 78 76 - - - - - - - - - - - -10 Max mm (12) 10 12 - - - - - - - - - - - Porosity % (13) 38 to 45 38 to 45 35 to 45 35 to 45 35 to 45 35 to 45 40 min 40 min 40 min - - - Temp (oC) Initial Deformation (14) - - - - - - >1240 >1240 >1240 - - - - Fusion (15) - - - - - - >1350 >1350 >1350 - - - - Reactivity to CO2 (16) - - - - - - - - - 180 150 120 120 Size Range (17) The material shall be in the size range between 100 and 25 mm with a size tolerance of 5 % by mass for oversize and 10 % by mass for undersize Size of the coke shall be as agreed to between the purchaser and the supplier (see....
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....cal coke, Coke for Ferro Alloy industry, Nut coke, etc. Therefore, relying on the description of the goods given in the said notification, department felt that as the exemption was available to metallurgical coke, whereas, the imported goods were 'Chinese Coke Breeze', the said exemption was not available. Accordingly, a SCN dt.30.12.2014 was issued denying them the benefit of the said exemption notification and demanding differential Customs Duty, as also, confiscation of goods, both available as well as the goods which were cleared already and also for imposition of penalty under section 112(a). On adjudication, while the demand has been confirmed in full, the confiscation proposed in respect of goods already cleared was not confirmed and it was restricted only to the goods available and also an option was given for redeeming the same on payment of redemption fine and a penalty of Rs.1 Crore was also imposed under section 112(a). 5. Learned Advocate for the appellant submits that the impugned order is suffering from a fundamental fallacy, viz., the presumption that it is only the blast furnace coke that qualifies as metallurgical coke. Also, that the adjudicating authority acc....
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....(Page No. 375-376 of Volume 13), the expression 'metallurgy' has been defined as - 'Metallurgy is the science of separating metals from their ores and preparing them for use. All metal objects we use are made possible by the work of metallurgy. Metallurgy falls in two major divisions: Extractive or processed metallurgy; and physical or alloy metallurgy.' Further, extractive metallurgy has been defined as - 'Extractive Metallurgy deals with taking metals from their ores and refining them to a pure state. It includes a wide variety of specialized commercial processes, such as mineral dressing, roasting, sintering, leaching, electrolysis and amalgamation.' Similarly, Extractive metallurgy has been defined in Kirk Othmer Encyclopedia of Chemical Technology (Volume 16 fifth edition), wherein, it has been stated that sintering is one of many operations which fall within the scope of such Extractive Metallurgy. Usually, the ore or concentrate cannot be reduced to the metal in single operation. An additional preparation process is needed to modify the physical or chemical properties of the raw material prior to its reduction. Furthermore, most pyro metallurgical reductions do not ....
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....ere it was cited that coke breeze is not used in metallurgical operation. Thus, as per plain wordings of the exemption notification, any coke where the end use is metallurgical i.e., used in extraction of metal from ore, irrespective of chemical composition or other physical property i.e., size, would be covered by the notification. Insofar as reliance placed on Circular No.56/2003 dt.27.06.2003, learned Advocate pointed out that the department had failed to appreciate the context in which this circular was issued as the circular envisages a situation where coke breeze was not imported but it is generated in the course where metallurgical coke is used in the manufacture of pig iron/steel and in that context it was clarified that such generated coke breeze was different from imported coke and hence it cannot be said that imported coke is not fully utilized in the manufacturing process. 9. Further, he relies on the judgment of Hon'ble Supreme Court in the case of CCE, Bolpur Vs Ratan Melting & Wire Industries [2008 (231) ELT 22 (SC)] in support that any circular contrary to the law (whether primary or subordinate legislation) has no existence and is non-est. He has also relied on ....
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.... relying on the said observations/judgment of the Tribunal. 11. On the other hand, learned AR on behalf of the Department, inter alia, argued that the wordings used in the exemption notification are quite clear and it covers only metallurgical coke and not coke breeze. He has reiterated the findings of the Commissioner and the order of the Coordinate Bench at Kolkata in the appellant's own case i.e., M/s Jindal Steel & Power Ltd Vs CC (Prev.), Bhubaneswar [2024 (1) TMI 1335 - CESTAT Kolkata], as also the judgment of Coordinate Bench at Bangalore in the case of M/s Mukand Ltd, M/s Kalyani Steels Ltd, M/s Kirloskar Ferrous Industries Ltd, M/s SLR Metaliks Ltd Vs CC, Mangalore [2025 (3) TMI 73 - CESTAT Bangalore]. Further, in support that notification has to be construed strictly, he has relied on the judgment of Hon'ble Supreme Court in the case of CC (Import), Mumbai Vs M/s Dilip Kumar and Co. & Ors [2018 (7) TMI 1826 - SC] and in the case of CCCE & ST, Patna Vs M/s Shapoorji Pallonji and Co Pvt Ltd & Ors [2023 (10) TMI 748 - SC]. He has also invited the attention to the cross objections dt.24.10.2016 filed by the department. 12. This appeal was heard on 09.06.2025 when both s....
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....ce that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in such manner as may be specified by rules made in this behalf against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3)." 17. Therefore, unless the department is aggrieved with the order either in full or any part thereof, there is no ground for them to file an appeal or for that matter, memorandum of cross objections in terms of section 129A(4). In this case, from the Form CA-4 itself, it is apparent that relief claimed by the department is to uphold the impugned order dt.20.11.2015 passed by the Principal Commissioner of Customs. Therefore, it is obvious that they are not aggrieved by the order including even a part dropping of demand on account of not confiscating certain goods. Therefore, keeping in view the provisions under section 129A(1) and....
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....benefit of exemption notification was being granted under the said notification as the declared description exactly matches with that of the description in the Notification. When the government grants exemption for a particular commodity the exemption is applicable only to that commodity and not to any other goods/commodity. Thus, it is clear that the exemption as provided against the Sl.No.125 of Notification No.012/2012-Cus is available only to metallurgical coke and not coke breeze. 32.2In view of the above, I hold that the claim of exemption for coke breeze under Sl.No.125 of CN 12/2012 Dt.17.03.2012 for the two clearances obtained against Bills of Entry No. 4147311/21.12.2013 and 4500504/ 30.01.2014 by M/s JSPL was not in order and I also hold that the benefit of exemption under said notification is to be denied and the differential duty to be recovered." 20. To sum up, the adjudicating authority has taken into account the express wordings used in the notification and some of the clarifications furnished by the appellant in the course of enquiry. Further, he has taken into consideration the chemical examiner's report, clarifications as well as cross-examination of ....
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....ore charging metallurgical coke to the blast furnace. Coke breeze is a different product usually of less than 10 mm size, which arises in the course of overall manufacturing process in which metallurgical coke is used as raw material. During the coke quenching, handling and screening operation, coke breeze is produced." 21. He has also relied on the data given by the Ministry of Steel, Government of India, on their website, where the term 'metallurgical coke' has been defined as - 'not all coke can be used in metallurgical operations for which good quality coke made from specific blend of coking coal is essential. Such coke is classified as Met. Coke and that coke breeze is of size 0-15mm.' 22. He has placed reliance on Bureau of India Standards - IS 3810 (Part 2): 2003, wherein, the terms relating to sampling testing and analysis are given and coke breeze and metallurgical coke are described as below: Breeze: The undersize after separating the smallest size of graded coke and it is usually less than 10mm in size. Coke: The solid, agglomerated carbonaceous residue produced by the pyrolysis of coal in the absence of air. 23. He has also relied on ....
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.... appellant would not be covered within the expression 'metallurgical coke' and therefore, not entitled for exemption. 27. Further, we note that department has relied heavily on Test Reports and opinion to conclude that coke breeze is not metallurgical coke. We have perused his report and find that he has given specific findings with regard to moisture content and Volatile Matter (VM) and given his opinion based on ISI standards for metallurgical coke, both in terms of chemical and physical parameters, and size analysis for marketing. It is obvious that this standard covers various types of industrial coke including Blast Furnace coke, Foundry coke, coke for ferroalloy industry, etc., and these characteristics vary widely. Even for marketing purpose, the hard coke has been classified on the yardstick of size, where 'coke fine' of '-10' size is termed as coke breeze. The conclusion of chemical examiner is not based on correct application of these standards. He has mainly distinguished that coke breeze does not meet the standards of blast furnace coke or foundry coke and in equating 'metallurgical coke' with only BF coke. In fact, these standards would indicate that there could be ....
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....enclatures, end use, etc. A great deal of reliance has been placed by the chemical examiner on IS 437-1979 and IS 439-1989. We find that as far IS 439-1989 is concerned, this prescribes standard for sampling and testing for industrial coke, suitable for use in blast furnace, foundries, gas producers and ferroalloy industries. Whereas, IS 437-1979 is primarily for size analysis of coal and coke, where coke of size +100 is referred to as foundry coke and size between 25-100 is referred as blast furnace coke and size up to 10 is treated as breeze. Further, we note that though not referred to in the OIO, however, by way of counter, department also pointed out that in terms of IS 5451-2001, wherein, terminology has been provided in respect of glossary and terms relating to coal, carbonization products and metallurgical coke, wherein, it has been explained as - 'This typically contains 85-88% fused carbon, 911% ash and 2% volatiles.' It defines coal breeze (not coke breeze) as - 'The finer sizes of coke below 6mm obtained by screening.' It also defines coke under three categories viz., 'Run-of-Chamber, Run-of-Oven and Runof-Retort before undergoing any screening or other preparation'. ....
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....ticular purpose like Foundry or Ferroalloy industry but the fact remains that coke is essentially meant for metallurgical purpose. In the present appeal, there is no dispute that it is coke and not coal, however, the origin of this imported breeze coke is not known conclusively to either department or appellant but it could generally emerge either at the time of charging of metallurgical coke in BF or emerge as undersize coke in the process of coke making from coal in a coke oven battery. Thus, except for size, it has the same chemical properties as that of the coke from which it has emerged. In fact, because of its size, this cannot be fed directly in BF and therefore, with advent of modern metallurgy, a process called 'sintering' is now being widely utilized for using smaller size coke and smaller size iron ore fines for converting them in 'sinter', which is then charged into BF along with regular size iron ore and metallurgical coke for making iron/steel. 34. We further find that the test conducted by CRCL chemical examiner is not in accordance with IS 5451-2001 as it merely defines technical terms relating to coal carbonization products. Therefore, the technical characterist....
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....sed in sinter plant and EAF. Further, iron ore, coke, sinter, pellets, limestone and quartz are fed from the top into a blast furnace, and hot air from stoves is fed through tuyeres from the bottom of the blast furnace along with PCI and steam to reduce iron ore to molten iron. On going through the manufacturing process of coke in coke oven plant, it is noticed that once the coke is made from the coal, it is pushed out of battery and is screened so as to ensure that only coke of particular size is fed directly into the blast furnace, whereas, the coke up to 10mm size, which is screened out is used in the sinter plant for making sinter first, which is subsequently used as charge in BF. 37. We have also examined the process of sintering in Iron and Steel making. A sinter plant is used for making 'sinter' and the raw materials used for making sinter are Iron ore fines of 0-10mm, limestone of 0-03mm, dolomite of 0-03mm, coke fines of 0-03mm and sand/quartz of 0-03mm. In addition to that sometimes returned sinter and mill scale along with some plant waste are also used in sintering process. The coke breeze is used both as a fuel and partial reducing agent in the sinter making process....
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....oke or not. There is no dispute that this is a coke as it is not being disputed by either side that it is not coke but coal or something else. Therefore, it is presumed that it has emerged either in the process of manufacturing of coke in the coke oven batteries abroad or it is from the screening of coke at the time of charging in the blast furnace. Nobody is disputing that its size, as such, cannot be directly fed into blast furnace. However, the said breeze, merely because its size being less than 10mm, cannot be said as one which has got no metallurgical property or use in the metallurgy industry. It is evident from the report of NISST that in the sintering plant, the emerged breeze is not only being used as fuel but also as reducing agent for partially reducing the iron ore fines of the size, which cannot directly be fed into the blast furnace. It is also not disputed that the emerging sinter made out of this breeze and iron ore fines and other raw materials like dolomite, etc., are further used in blast furnace for making iron/ steel. If the breeze has got no metallurgical property, then the same cannot be used either directly or indirectly in the blast furnace. It is obvious ....
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.... stock for blast furnace. Thus, we find that conclusion drawn by the adjudicating authority based on chemical examiner's report, as well as selective reference to various technical literature, is not correct. 42. A plain reading of the entry at S.No.125 of the notification would essentially mean that any coke which can be used for metallurgical purposes is covered within the ambit of the said notification. The breeze is coke is not in dispute. It is used in the metallurgical process through sintering route, which in turn is used for steel making is also not in dispute. Sintering process is a metallurgical process, where breeze is both used for fuel and also as reducing agent. The said sinter is further used as charge in blast furnace as feed for making iron/steel. Therefore, a holistic evaluation of the process of sintering and its use would indicate that breeze has indeed been used for the metallurgical purpose in the given factual matrix. Therefore, in the absence of any specific or definitive definition of metallurgical coke, either in the notification or in the tariff, a plain reading would have to be resorted to. A plain reading, as discussed in the foregoing paras, would i....
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.... S.No.125, it exempts 'metallurgical coke', per se, without any qualification, specification, end use or conditions. Thus, it is obvious that entry 125 has enlarged the scope of the expression 'metallurgical coke' and not restricted as was assigned to metallurgical coke at S.No.71 of earlier Notification No. 21/2002. Therefore, equating only BF coke as metallurgical coke would not be correct interpretation. 46. Much reliance has been placed by the department on the judgments of M/s Dilip Kumar and Co. & Ors (supra) and M/s Shapoorji Pallonji and Co Pvt Ltd & Ors (supra). We find that while the notification has to be construed strictly and in case of any ambiguity, the interpretation that favors Revenue must be adopted, we do not find that the said ratio is applicable in the facts and circumstances of this case, as there is no ambiguity insofar as understanding the expression 'metallurgical coke' used in notification is concerned by simply applying a plain reading of the term used in the notification in the absence of any specific definition of the same given either in tariff or in the notification. Thus, for the reason cited above, we find that breeze is nothing but metallurgica....
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.... a) Imported Chinese Coke Breeze is emerging out of coke either at the time of screening of coke made in coke oven from coking coal/ bituminous coal or is emerging out of metallurgical coke feed at the time of charging in the blast furnace. b) Various IS specifications exist for various types of coal and coke based on chemical properties, physical properties and size but not any of these have specifically stated that only blast furnace coke is 'metallurgical coke' having peculiar chemical properties, as distinct from other types of coke. c) Sintering process in an integrated steel plant is used for producing 'sinters' from undersized charging materials like metallurgical coke, iron ore, dolomite, etc., which cannot be charged directly into the blast furnace due to technical difficulty arising out of their size or weight and not because they do not have chemical properties which can be fed directly into blast furnace. d) Sinters are intermediate agglomerated raw materials used as charge in blast furnace for making iron/steel and hence, sintering is very much part of metallurgical process of extracting iron from iron ore. e) Chemical examiner has g....