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TMI Blog1991 (10) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... read as follows :- 26.13 Molybdenum Ores and concentrates 2613.10 - Roasted 28.25 Hydrazine and Hydroxylamine and their inorganic salts; other inorganic bases; other metal oxides, hydroxides and peroxides 2825.70 - Molybdenum oxides and hydroxides". 4. The issue had come up before the Tribunal in the case of MMTC v. CC, Calcutta. The Molybdenum content was above 61%. The goods were assessed under Heading 28.01/58(1) negating MMTC s claim for Heading 26.01(1). The department had relied on a Trade Notice issued by the Collector of Customs, Calcutta according to which Mo O containing over 61% Mo would fall under Heading 28.01/58(1) and Mo O with 55% to 61% Mo content under Heading 26.01 as ore concentrate. MMTC s counsel drew the Tribunal s attention to the Madras Collector s notice which classified Mo O without any qualifying remarks under Heading 26.01. The Tribunal took note of the statutory Chapter Note 2 to Chapter 26 and Note 1(a) to Chapter 28 and remanded the matter of classification to the Collector (Appeals). It observed that the use of the goods for non-metallurgical purposes i.e. not in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative Bill of Entry that the goods were described as Technical Molybdic Oxide (Molybdenum) having molybdenum content of 59.9%. The goods are described as Technical Molybdic Oxide (Molybdenum) in the relative invoice also. Heading 26.13 of the Harmonized Commodity Description and Coding System of Customs Cooperation Council, Brussels reads : - 26.13 - Molybdenum Ores and concentrates 2613.10 - Roasted 2613.90 - Others The Explanatory Notes relating to this heading reads, inter alia , as follows : - The heading also covers roasted molybdenite concentrates ( technical molybdic oxide", obtained by merely roasting molybdenite concentrates)". Therefore, based on the declared description of the goods which is supported by the relative invoice and which has been accepted by the Customs authorities, the goods are Technical Molybdic Oxide which, according to the aforesaid Explanatory Notes, is roasted molybdenite concentrates. It is therefore that the goods are covered by sub-heading 2613.10 of the First Schedule to the Customs Tariff Act, 1975. In this view of the matter, the percentage of Molybdenum does not appear t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at high temperature. The Collector has held that the question whether technical molybdenum oxide would be classifiable under Chapter 26 or 28 depends on the extent of impurities it contained. He has observed that as per instructions issued by the Customs House Tariff Public Notice No. 67/81 molybdenum oxide containing over 61% of molybdenum would cease to be considered as concentrated ore classifiable under Chapter 26 and would be considered as appropriately classifiable under Chapter 28 of the Tariff. He has rejected the refund application on the ground that the goods were not tested in Customs House Laboratory. It was assessed at higher rate on the basis of documents submitted by the appellants in terms of Section 17(4) of the Act. He has observed that as the importer did not claim the lower rate nor executed a test bond and also as they did not ask for provisional assessment subject to drawal of sample for test, the goods having been cleared, there will be no scope to challenge the assessment at this stage. 13. The appellants in this appeal have urged that the goods are mineral products and classifiable as ore under Chapter 26 and that they are not chemicals to be classified u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them in the Bill of Entry. Hence, the importer having got the goods cleared now cannot hold the Department responsible for not testing the goods as such a situation did not arise in the facts and circumstances of this case. The Importer had also not placed sufficient material to uphold their contention. As it is the goods being described as Technical Molybdic Oxide and the goods having been obtained by roasting Molybdenite concentrates and same being directly used in the production of alloy steel (high speed steel) without subjecting the goods for further purification clearly suggests that it is no longer in crude ore form to be classified under Chapter 26. It is described as Technical Molybdic Oxide and not molybdenum ore. Technical Molybdic oxide is a specifically defined compound with definite formula of Molybdenum ore and hence it is a chemically defined compound falling under Chapter 28. The Collector has not decided the issue only on the basis that the goods have not been tested but has given sufficient reasons as well. He sought for remand for reconsideration of the matter. 16. The question that arises for consideration is as to whether the goods having undergone sever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs House, Calcutta, the observation made at para 5 made by the Bench in the MMTC case in Order No. 736/90 is reproduced below - We have carefully considered the submissions before us and perused the record. As earlier noted, the Calcutta Custom House Trade Notice does not give any basis for restricting the classification under Heading 26.01 to Mo O with 55% to 61% Molybdenum. The Madras Custom House Trade Notice, on the other hand, does not contain any such restriction. Both notices have been issued around the same time and, as seen from the Madras notice, were the result of decisions taken by the Conference of Collectors of Customs on Tariff. This difference only shows that even the Department was not quite sure of its stand. It is quite legitimate to ask why 61% why not 63%. There should be some rational basis but none has been placed before us. Nor do the orders of the lower authorities contain any rational explanation. The Collector (Appeals) has relied on Statutory Note 1(a) to Chapter 28 which reads as follows - 1. Except where the context or these Notes otherwise requires or require, this Chapter is to be taken to apply only to - (a) Separate chemical elements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehalf of the appellants, Shri A.N. Haksar, learned Counsel, while supporting the order proposed by Hon ble President Shri G. Sankaran (since retired) submitted that the subject goods, namely, Molybdenum Oxide ( Mo O , for short) be classified under sub-heading 2613.10 reiterated the reasons given by the Hon ble President for his findings. He further submitted that there is no necessity to remand the matter either to the Collector (Appeals) or to the original authority as proposed by the learned Judicial Member, Shri S.L. Peeran, in his referable Order for, the Molybdenum content of the subject goods was 59.9% as could be seen from the declaration made in the Bill of Entry by the appellants and the relative Invoice - a fact not disputed by the Revenue according to him. He highlighted that if the Revenue wanted to challenge the correctness of the contents of Molybdenum in the subject goods, as declared by the appellants, the Department could, and should, have tested the goods which admittedly they have not done. He also added that the subject goods fall squarely within the prescriptions given in the Calcutta Trade Notice for classification under Heading 26.01 and the Department shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... House, (on which reliance was placed by the learned Counsel for the appellants before me also) does not give any basis for restricting the classification under Heading 26.01 to Mo O with 55% to 61% Molybdenum. It was also noticed in that case that there is another Trade Notice issued by the Madras Customs House which does not contain any restriction though it appeared that both the said notices were issued around the same time and were the result of decisions taken by the Conference of Collectors of Customs on Tariff. This itself shows that even the Department was not quite sure about its stand. Under these circumstances, I agree with the observations made by the learned Judicial Member in paragraph 19 of the referable Order. From the impugned Order I also find that the goods have undergone roasting and other processes and the Collector had ascertained from the appellants that Molybdenum Oxide containing about 5 to 11% impurities are sold as Technical Molybdenum Oxide, and pure form of Molybdenum Oxide of purity of 99.975% is obtained by heating this Technical Molybdenum Oxide in a furnace at high temperature. This admission on the part of the appellants before the Collector, prima ..... X X X X Extracts X X X X X X X X Extracts X X X X
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