2002 (2) TMI 1274 - AT - Customs

Sulphur, crude - Crude sulphur is also sulphur - Precedent - Decision, contrary decision in another case - Evidence

Summary

Issues:
Eligibility for exemption to excise duty under Entry 12 of Notification 7/92 as amended by Notification 94/93 for imported sulphur declared as "bulk sulphur (crude)".

Analysis:
The appeal before the Appellate Tribunal CEGAT, Mumbai involved the eligibility of an importer for the benefit of exemption to excise duty under Entry 12 of Notification 7/92, as amended by Notification 94/93, for imported sulphur declared as "bulk sulphur (crude)". The importer claimed a refund of the additional duty of customs paid, arguing that the amendment by Notification 94/93 was clarificatory and retrospective in application. The Assistant Commissioner rejected the claim, leading to an appeal by the importer. The Commissioner (Appeals) allowed the claim based on the view that the imported sulphur was in powder form and covered by the notification as it stood on the date of importation.

The Tribunal noted that the critical issue was whether the imported goods, declared as crude sulphur, were covered under Entry 12 of the notification. The Tribunal highlighted that the relevant Heading 1825.05 of the Tariff exempted sulphur powder, which was not covered by any sub-headings and thus classified under the residuary sub-heading "Other". The Tribunal rejected the argument that crude sulphur was different from sulphur mentioned in the tariff, emphasizing that the physical form of sulphur, whether crude or refined, did not affect its classification under the tariff.

The Tribunal emphasized that if crude sulphur was in powder form, it would qualify for the exemption. The decision was supported by evidence indicating that the imported sulphur was indeed in powder form, including a certificate from the Fertiliser Manufacturers Association of India and a test report from the supplier. The Tribunal dismissed the appeal, noting that the evidence presented by the Commissioner (Appeals) was sufficient to establish that the imported sulphur was in powder form, making it eligible for the exemption under the notification.

The Tribunal also addressed the argument regarding a different view taken by the Commissioner (Appeals) in another case, clarifying that the absence of evidence in that case distinguished it from the present case where evidence supported the classification of the imported sulphur as powder form. Ultimately, the Tribunal upheld the decision of the Commissioner (Appeals) and dismissed the appeal, affirming the eligibility of the importer for the exemption based on the physical form of the imported sulphur.