2009 (8) TMI 656 - AT - Customs

Coal- Non-coking coal- Import- Classification- whether the impugned goods imported by the appellants can be classified under heading 2701.19 and charged to 15% duty as contended by the appellants or should be classified under heading 2701.12 and charged to 25% duty as contended by the Department? The appellants have been importing non coking coal in the past which was being classified under heading 2701.19 all along without the Department disputing the same. Held that- import also made in past and department not disputing classification. Strong case on classification under sub-heading 2701.19 of Custom Tariff Act, 1975 on basis also of invoices as well as purchase orders. Department not carried out any chemical test and having no basis to classify goods under sub-heading 2701.12. Assessee s appeal allowed.

Summary

Issues: Classification of imported goods under heading 2701.19 or 2701.12, DEPB benefit availment

Classification of Imported Goods:
The common issue in the four appeals before the Appellate Tribunal CESTAT, CHENNAI was whether the imported goods should be classified under heading 2701.19 and charged 15% duty as argued by the appellants or under heading 2701.12 with a 25% duty as contended by the Department. The appellants claimed that the goods were 'non coking coal' and should be classified under heading 2701.19 based on past imports, invoices, and purchase orders. They argued that the Department classified the goods as "Bituminous Coal" relying on a survey report without conducting an independent test. The Tribunal found that the survey was done to determine the price to be paid to the supplier based on the gross calorific value on an air dried basis. Since the Department did not conduct a chemical test to verify the classification, the Tribunal ruled in favor of the appellants, setting aside the impugned orders and allowing the appeals.

DEPB Benefit Availment:
One of the appeals, C/374/03, involved the issue of DEPB benefit availment. The appellants decided not to press this appeal, leading to the dismissal of the appeal related to this issue. Therefore, the impugned order concerning the DEPB benefit was upheld, and the appeal in this regard was dismissed as not pressed.

Judgment Outcome:
The Appellate Tribunal CESTAT, CHENNAI, through the order pronounced on 31-8-2009, allowed Appeals No. C/370/03, No. C/372/03, and No. C/373/03, while partly allowing Appeal No. C/374/03 due to the appellants not pressing the issue related to DEPB benefit availment.