1991 (3) TMI 267 - AT - Customs

Issues Involved:

1. Entitlement to exemption under Notification No. 329/79-Cus. for a mixture of Mica Flakes and Powder.
2. Classification of the subject goods (Mica Flakes and Powder) for export duty.
3. Burden of proof for claiming exemption under the notification.
4. Interpretation of the exemption notification's language.
5. Admissibility and relevance of evidence provided by the appellants.

Detailed Analysis:

1. Entitlement to exemption under Notification No. 329/79-Cus. for a mixture of Mica Flakes and Powder:

The primary issue was whether the appellants were entitled to the benefit of exemption Notification No. 329/79-Cus. dated 2-8-1976 for a mixture of Mica Flakes and Powder. The appellants claimed that the mixture was covered under Sl. No. 3 and 4 of the table appended to the Notification, which exempted "processed Mica Powder" and "Mica Flakes of 2 mesh and above but below 6 mesh" from export duty. However, the authorities below, including the Assistant Collector and the Collector of Customs (Appeals), rejected this claim, asserting that the notification did not cover mixtures of Mica Powder and Flakes.

2. Classification of the subject goods (Mica Flakes and Powder) for export duty:

The appellants filed a Shipping Bill for exporting Mica Flakes to Iran but described the goods as "Mica Flakes below 2 mesh to 40 mesh." Upon testing, the goods were found to be a mixture of Mica Flakes and Powder, not fitting the description provided in the Shipping Bill. The Chemical Examiner and Chief Chemist's reports confirmed that the goods were a heterogeneous mixture of flakes and powder, with varying mesh sizes, thus not qualifying as either exclusively processed Mica Powder or Mica Flakes of 2 mesh and above but below 6 mesh.

3. Burden of proof for claiming exemption under the notification:

The tribunal emphasized that the burden of proof lies with the party claiming the benefit of an exemption notification. The appellants failed to prove that their goods fell within the exemption criteria. The appellants' description in the Shipping Bill and subsequent test reports revealed discrepancies, leading to the conclusion that the goods did not meet the specific exemption criteria under the notification.

4. Interpretation of the exemption notification's language:

The tribunal noted that the notification listed specific items eligible for exemption, and the language did not extend the benefit to mixtures of different items. The notification's table clearly separated items like processed Mica Powder and Mica Flakes of specific mesh sizes. The tribunal rejected the appellants' argument that the absence of words like "only" or "exclusively" implied inclusion of mixtures, citing that each item was listed separately and distinctly in the notification.

5. Admissibility and relevance of evidence provided by the appellants:

The appellants presented various certificates and test reports to support their claim, including certificates from M/s. Seascan Services Pvt. Ltd., M/s. Therapeutics Chemical Research Corporation, MITCO, and the Director of Geology and Mining. However, the tribunal found that these documents did not conclusively prove that the goods were either processed Mica Powder or Mica Flakes of the specified mesh sizes. The tribunal upheld the Assistant Collector's reliance on the Chemical Examiner's report, which classified the goods as a mixture and not fitting the exemption criteria.

Conclusion:

The tribunal concluded that the benefit of the exemption notification could not be extended to the subject goods, as they were a mixture of Mica Powder and Flakes, not fitting the specific descriptions in the notification. The appeal was rejected for lack of merit, affirming that the exemption applied only to clearly defined items listed in the notification and not to mixtures.

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