2020 (1) TMI 742 - AT - Customs

Exemption from Customs Duty on Copper Concentrate to the extent of duty on the value of Gold and Silver contained in such Copper Concentrate - Denial of the benefit of N/N. 24/2011-Cus dated 01.03.2011 - denial of benefit of notification on the ground that the Assay Certificate of the Mining Company submitted at the time of provisional assessment is not co-relatable with the import documents submitted by the appellant. HELD THAT - The appellants have produced a provisional assay certificate from the mining Company at the time of import. They have finalized the price with the supplier who is not a mine - Tribunal in the appellants own case HINDALCO INDUSTRIES LTD., COMMISSIONER OF CUSTOMS-AHMEDABAD VERSUS COMMISSIONER OF CUSTOMS-AHMEDABAD, HINDALCO INDUSTRIES LTD. 2015 (3) TMI 948 - CESTAT AHMEDABAD has held that For a feasible solution it will be appropriate to take the value content of gold silver, either in the provisional assay certificate or in the final assay certificate produced by the appellant, which ever is less, for allowing the benefit of Notification No. 24/2011-cus when final assay certificate is given by an agency other than the mining company. In view of the clear cut finding of tribunal approved by Hon ble Apex Court in COMMISSIONER VERSUS HINDALCO INDUSTRIES LTD. 2016 (3) TMI 1038 - SC ORDER , it cannot be said that the Notification can be denied just because final assay certificate has not been produced from the Mining Company and a provisional assay certificate has been produced. It is seen that vide Order-In-Original disputes the provisional assay certificates itself on the ground that the said certificate does not contain the Customer no. and Sales Order No. The said issue has not been dealt with by the First Appellate Authority - the matter is remanded to First Appellate Authority to examine if the provisional assay certificate produced by the appellant relates to the disputed consignment. If it is found to be the same, then assessment may be done in terms of the Tribunal Order in the appellants case - appeal allowed by way of remand.

Summary

Issues:
- Entitlement to benefit of Notification No. 24/2011-Cus regarding customs duty exemption on Copper Concentrate based on assay certificate requirements.

Analysis:
The appeal in this case was filed against the demand of customs duty arising from the denial of the benefit of Notification No. 24/2011-Cus dated 01.03.2011. The appellant, M/s. Hindalco Industries Limited, claimed exemption from Customs Duty on Copper Concentrate to the extent of duty on the value of Gold and Silver contained in it, subject to the condition of producing an Assay Certificate from the Mining Company specifying the value of Gold and Silver content. The dispute centered around the denial of this benefit by the Original Adjudicating Authority due to the Assay Certificate not being co-relatable with the import documents submitted by the appellant.

The crux of the issue was whether the appellants were entitled to the benefit of Notification No. 24/2011-Cus. The Notification exempts copper concentrates from customs duty equivalent to the duty leviable on the value of gold and silver contained in them, provided an assay certificate from the mining company specifying the gold and silver content is produced. The appellant had submitted a provisional assay certificate from the mining company at the time of import and finalized the price with a supplier other than the mining company. The Tribunal's decision in the appellant's own case clarified that the final assay certificate need not be from the mining company specifically, and either the provisional or final assay certificate, whichever is less in value content of gold and silver, should be accepted for the benefit under the Notification.

The Tribunal's decision, endorsed by the Hon'ble Apex Court, emphasized that the Notification did not mandate the final assay certificate to be from the mining company directly. It highlighted the need for a feasible solution, suggesting that the value content of gold and silver from either the provisional or final assay certificate should be considered for granting the exemption. The Order set aside the impugned decision and remanded the matter to the First Appellate Authority to verify if the provisional assay certificate related to the disputed consignment. If so, assessment should be done in line with the Tribunal's Order in the appellant's case, as approved by the Hon'ble Apex Court.

In conclusion, the appeal was allowed by way of remand, emphasizing the importance of complying with the requirements of the Notification for customs duty exemption on Copper Concentrate based on the assay certificate specifications, regardless of whether the final assay certificate is from the mining company or another approved agency.