2024 (5) TMI 336 - AT - Customs

Re-Classification of Hot/Cold Rolled Stainless Steel Coils Grade 13 ( subject goods ) - Denial of exemption under Sr. No. 734 of customs Notification No. 50/2018- Cus - Extended period of limitation - duty demand - Interest - Penalty - Change of classification on the basis that the 1% Nickel content in the product - HELD THAT - The whole case was made out for change of classification on the basis that the 1% Nickel content in the product will not qualify the imported goods as ''Nickel Chromium Austenitic Stainless Steel''. The important point to be examined is to qualify the product namely, Nickel Chromium Austenitic Stainless Steel whether it is mandatory to have Nickel content of 4.5% to 12% or otherwise. We find that department's reliance on the websites of M/s Aalco metals ltd. (England and Wales) and M/s ASM international Limited cannot be a conclusive factor to classify the product as other than Austenitic Nickel Chromium Stainless Steel for the reason that from the said evidence it is clear that not only those products which contain 4.5% to 12% Nickel will fall under Austenitic Stainless Steel but even the low content Nickel in Stainless Steel will also fall under Austenitic Stainless Steel. Therefore, the mere reliance on the websites of M/s Aalco metals ltd. (England and Wales) and M/s ASM international Limited is incorrect for arriving at classification. Therefore, on the fact of the case which is not under dispute and on the authority mainly Indian Standards, the goods imported by the appellant are correctly classifiable under Chapter Tariff Heading 7220 9022 as Nickel Chromium Austenitic Type. Without prejudice to the above, we also find that the adjudicating authority has not confirmed the classification proposed in the show cause notice. The department in the show cause notice in respect of Hot Rolled Nickel Chromium Austenitic Type was proposed to be classified under 7220 1090 and Cold Rolled Nickel Chromium Austenitic Type was proposed to be classified under 7220 9090 whereas the adjudicating authority decided the classification of both the product under 7220 1229 and 7220 2029 respectively. It is a settled legal position that if the goods cannot be classified under a classification which has been proposed in the show cause notice, then even if its correct classification is different than the classification claimed by the assessee, the entire show cause notice fails on this point itself. It is settled that the department cannot travel beyond the proposals made in the show cause notice. In the present case the impugned order travelled completely beyond the classification proposed in the show cause notice. Therefore, on this ground also, the impugned orders are not sustainable. We find that the entire case is based upon Mill Test Certificate or the documents produced by the appellant. The Nickel content was very much available in the Mill Test Certificate, therefore there is no suppression on the part of the appellant. Since the case was made out on the basis of Nickel content which was available before the department, the department could have taken the action within the normal period. In these facts, since no suppression of fact is there and the show cause notice was issued beyond two years from the import, the entire demand is time barred. In this regard, the judgments cited by the appellant support their case on limitation also. Thus, we are of the view that the demand is not sustainable on limitation also. As per our discussion and finding made herein above, the impugned orders are not sustainable, hence, the same are set aside. Appeals are allowed with consequential relief, if any, in accordance with law.

Summary

Issues Involved:
1. Custom Tariff classification of "Hot/Cold Rolled Stainless Steel Coils Grade 13."
2. Eligibility for exemption under Sr. No. 734 of customs Notification No. 50/2018-Cus dated 30.06.2018.
3. Invocation of extended period of limitation u/s 28(4) of Customs Act for demanding customs duty and imposing penalties.

Summary:

1. Custom Tariff Classification:
The issue pertains to the classification of "Hot/Cold Rolled Stainless Steel Coils Grade 13" under the Custom Tariff Act, 1975. The department contended that the subject goods were misclassified under CTH 7220 90 22 as they did not contain sufficient nickel content to be classified as Nickel-Chromium Austenite Steel. The department argued that to qualify as nickel austenitic stainless steel, the nickel content should range from 4.5% to 12%, while the imported goods contained approximately 1% nickel. The show cause notice (SCN) proposed reclassification under CTH 7220 9090/CTH 7220 1290 and rejected the exemption under Sr. 734 of customs notification No. 50/2018-Cus.

2. Appellant's Defense:
The appellant argued that the classification under Chapter Tariff Heading 7220 9022 as "Nickel-Chromium Austenite Type" was correct. They cited Indian Standard IS 15997:2012, which allows nickel content as low as 0.20% for certain grades of nickel austenitic stainless steel. They also contended that the adjudicating authority's reliance on copper content and the decision to reclassify the goods under a heading not proposed in the SCN was incorrect.

3. Tribunal's Findings:
The Tribunal found that the appellant's classification was correct based on Indian Standard IS 15997:2012, which permits nickel content as low as 0.2% to 14% for austenitic stainless steel. The department's reliance on external websites was not conclusive, and the adjudicating authority's decision to classify the goods under headings not proposed in the SCN was beyond the scope of the notice. Thus, the goods were correctly classifiable under CTH 7220 9022 as Nickel Chromium Austenitic Type.

4. Exemption Eligibility:
The appellant argued that the exemption under Notification 50/2018-Cus should not be denied merely because the foreign supplier was not the actual manufacturer. The Tribunal did not explicitly address this issue in the summary.

5. Extended Period of Limitation:
The appellant contended that the demand was time-barred as the SCN was issued beyond the normal period of two years from the date of imports. The Tribunal agreed, noting that the entire case was based on the Mill Test Certificate provided at the time of imports, and there was no suppression or mis-declaration of goods. The Tribunal cited several judgments supporting the appellant's case on limitation, concluding that the demand was time-barred.

Conclusion:
The Tribunal set aside the impugned orders, allowing the appeals with consequential relief, if any, in accordance with law. The judgment was pronounced in the open court on 01.05.2024.