2013 (10) TMI 410 - AT - Customs

Benefit of Notification No. 21/2002 - Whether the Aluminous Cement imported by the appellant is eligible for exemption under Sl. No. 448A of Notification No. 21/2002 Cus. or not - Held that - Aluminous Cement or cement containing high portion of alumina may be classified under Aluminous Cement. In the absence of any heading in the tariff for cement containing high percentage of alumina, the only conclusion that would arise would be that High Alumina Refractory Cement containing high percentage of alumina would be classified under Refractory Cement only. Once the tariff heading changed and the High Alumina Refractory Cement was classified under other hydraulic cement, no doubt the question of the product which is known in the trade as High Alumina Refractory Cement would be under the relevant heading in the tariff and there cannot be any dispute on this aspect. In the information of General Manager of the appellant, Aluminous Cements, Calcium Aluminate Cements, High Alumina Refractory Cements or Refractory Cements are variously termed by suppliers and all of them would mean that they are Refractory Cements. The General Manager seems to opine that all these products are under one category. This is further confirmed by the European Standards produced by the learned counsel. In the European Standards it has been mentioned in Note 2 that Calcium Aluminate Cement has previously been known by several alternative names in different countries, e.g. High Alumina Cement, Aluminous Cement, High Alumina Melted Cement. This shows that Calcium Aluminate Cement and Aluminous Cement are used for the same category of cement which is what the General Manager is saying in his statement. Thus we find at least a portion of the statement of the General Manager is confirmed by the European Standards also. Claim of the appellant that there was no intention to mis-declaration and by and large the Calcium Aluminate Cement and Aluminous Cement etc. come under one category, seems to be prima facie correct - stay granted.

Summary

Issues:
1. Interpretation of whether 'Aluminous Cement' imported by the appellant is eligible for exemption under Notification No. 21/2002 Cus.
2. Determination of mis-declaration by the appellant in importing 'High Alumina Refractory Cement' as 'Aluminous Cement' for exemption benefits.

Analysis:

1. The primary issue in this case revolves around the interpretation of whether the 'Aluminous Cement' imported by the appellant qualifies for exemption under Sl. No. 448A of Notification No. 21/2002 Cus. The Revenue contends that the product imported was not 'Aluminous Cement' but rather 'High Alumina Refractory Cement', leading to a demand for duty exceeding Rs. 1.08 crores. The appellant argues that they have consistently declared the product as 'Aluminous Cement' even before the issuance of Notification No. 21/2002. They provide evidence such as commercial invoices and manufacturer test reports to support their claim that the imported cement had a high alumina content. The appellant also highlights the historical tariff classifications pre and post 2003-04 amendments, emphasizing that globally, high alumina content signifies 'Aluminous Cement'. The appellant asserts that their intention was not to mis-declare the goods and that the exemption under Notification No. 21/2002 still applies to 'Aluminous Cement'.

2. The second issue addresses the allegation of mis-declaration by the appellant in importing 'High Alumina Refractory Cement' under the guise of 'Aluminous Cement' to avail exemption benefits. The Revenue argues that the appellant clearly mis-declared the product based on statements from the General Manager and supplier's trademark application. The General Manager's response regarding the various terms used for cement, including 'Aluminous Cement' and 'High Alumina Refractory Cement', is scrutinized. The appellant refutes the mis-declaration claim, citing the percentage of alumina content declared and industry understanding that high alumina content categorizes the cement as refractory cement. The Tribunal analyzes the technical understanding of the product, referencing European Standards and international tariff differentiations to support the appellant's position. Ultimately, the Tribunal finds merit in the appellant's argument, concluding that there was no intention of mis-declaration, and grants a waiver on the pre-deposit requirement during the appeal process.