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2017 (11) TMI 489 - AT - CustomsAppearance of members who ceased to hold office - whether Sh. Pruthi is eligible to appear in view of the condition of section 129(6) of Customs Act, 1962 as made applicable to Central Excise which debars Members from appearing before the Tribunal? - Held that - only a Member of Tribunal who is confirmed to hold office in such capacity can be said to have ceased to hold the sameand therefore the provisions of section 129(6) of the Act would not be attracted in the case of a Member who was not confirmed in his post - Shri P.S. Pruthi, ex-IRS officer is entitled to appear before CESTAT as authorized representative/consultant of the clients. Classification of export goods - Ilmenite - classified under CTH 26140020 or under CTH 26140010 - whether the processes employed by the respondent amount to beneficiation so as to hold classification under 26140020? - Held that - recourse to documents of the Ministry of Mines, Government of India would be valuable. It is seen from the same Indian Minerals Book as well as the license given by the Department of Atomic Energy for operating mines, that all the operations are subject to strict control of these Departments of Government of India. Therefore, it is apt to refer to such documents to decide the meaning of the word beneficiated - in terms of Rule 70 of Mineral Concession Rules, sand used for metallurgical process will not be treated as a minor mineral. In the present case the sand being used for metallurgical process is not therefore a minor mineral and does not fall under the exclusion clause 2(iv) of the Mineral Conservation and Development Rules. In any case, Ilmenite is the goods in question here and not the sand. Ilmenite is rare earth mineral. Even the Press Information Bureau of Ministry of Mines note dated 12.08.2015 fixing royalty rates, refers to Ilmenite as a major mineral. Hence, contrary to the reasoning of Revenue, the definition of beneficiation as given in Rule 3(d) of the Rules does apply - Board Circular 332/1/2012-TRU dated 17.2.2012 also clarifies that by beneficiation process the end product of ore is concentrate or upgraded ore with regard to the Chapter notes of Chapter 26 - the order passed by the coordinate Bench in the case of VV Minerals 2015 (10) TMI 2261- CESTAT Chennai the process undertaken by the appellant in that case is the same as in the present case. Revenue has not put forth any evidence to indicate that the processes are not identical. VV Minerals held that the taxpayer had carried out various processes of beneficiation as stipulated under Rule 3(d) of the Mineral Conservation and Development Rules, 1988 and by such process, the unprocessed ore becomes upgraded Ilmenite and hence, the impugned goods shall be classified under tariff item 26140020 as ilmenite upgraded (Beneficiated ilmenite) and chargeable to export duty at the rate of five percent - the dictum of VV Minerals is squarely applicable in the present matter before us - appeal of Revenue rejected. Refund claim - refund filed on account of change in classification sought in respect of the Ilmenite Ore exported by them - The appellant filed refund applications claiming the benefit by considering the export duty as 5% instead of the duty at 10% already paid by them in respect of shipping bills whose details along with other details are mentioned in the chart submitted at the time of hearing - Held that - The law and the High Court judgements referred by us clearly hold the issue in favor of the appellant - reliance placed in the case of AMAN MEDICAL PRODUCTS LTD. Versus COMMISSIONER OF CUSTOMS, DELHI 2009 (9) TMI 41 - DELHI HIGH COURT - there is no question of unjust enrichment in the case of exports is a well-established legal principle - refund allowed. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Eligibility of a consultant to appear before the tribunal. 2. Classification of Ilmenite under the Central Excise Tariff. 3. Entitlement to refund claims based on reclassification of Ilmenite. Issue-wise Detailed Analysis: 1. Eligibility of a Consultant to Appear Before the Tribunal: The tribunal raised a query regarding the eligibility of Mr. P.S. Pruthi to appear as a consultant for the appellant, given the restrictions under Section 129(6) of the Customs Act, 1962. The advocate for the appellant cited the Delhi High Court's judgment in Union of India vs. Ramesh Nair, which held that a member who demits office while on probation is not barred from appearing before CESTAT. The tribunal observed that Mr. Pruthi was not confirmed as a member and thus, the bar under Section 129(6) did not apply to him. Consequently, Mr. Pruthi was allowed to appear as an authorized representative. 2. Classification of Ilmenite under the Central Excise Tariff: The dispute centered on whether the Ilmenite exported by the respondent should be classified under tariff item 26140010 (Ilmenite, unprocessed) or 26140020 (Ilmenite, upgraded). The Commissioner (Appeals) had classified the Ilmenite under 26140020, relying on the Tribunal's decision in V.V. Minerals and other supporting documents. The Revenue argued that the process undertaken by the respondent did not upgrade the main content of Ilmenite ore, which is Titanium Dioxide (TiO2), and thus should not be classified as beneficiated Ilmenite. The respondent contended that their process increased the Ilmenite content significantly, which qualifies as beneficiation under Rule 3(d) of the Mineral Conservation and Development Rules, 1988. The tribunal found that the physical and mechanical processes employed by the respondent amounted to beneficiation, as supported by the Supreme Court decision in Tata Steel. The tribunal upheld the classification under 26140020 and rejected the Revenue's appeal. 3. Entitlement to Refund Claims Based on Reclassification of Ilmenite: The appellant sought refunds on the basis that the Ilmenite exported should be classified under 26140020, attracting a lower export duty of 5% instead of 10%. The Commissioner (Appeals) had rejected the refund claims on the ground that the appellant did not challenge the final assessment orders of the shipping bills. The tribunal referred to the Delhi High Court's judgment in Aman Medical Products, which held that refund claims are maintainable even if there is no formal order of assessment to challenge. The tribunal also noted that Section 27 of the Customs Act, dealing with refunds, was amended in 2011 to remove the condition that duty must be paid pursuant to an order of assessment. Consequently, the tribunal held that the appellant was entitled to the refunds claimed and allowed the appeals with consequential benefits. Conclusion: The tribunal allowed Mr. P.S. Pruthi to appear as a consultant, upheld the classification of Ilmenite under 26140020, and granted the refund claims based on the reclassification, providing a comprehensive resolution to the issues involved.
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