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TMI Blog2006 (7) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... in the bill of entry. The Supreme Court in Priya Blue Industries Ltd. v. Commissioner [ 2004 (9) TMI 105 - SUPREME COURT] has held that an importer is not entitled to a refund, if assessment on the Bill of Entry are not challenged. The ratio of the said decision will apply to the present case inasmuch as no differential duty can be demanded from the noticees, without the department challenging the assessment in the Bill of Entry. The Tribunal in the case of Wipro Ltd. v. CC, Chennai [ 2005 (5) TMI 157 - CESTAT, BANGALORE] has held that department cannot demand duty without challenging the assessment made in the Bill of Entry. Appeal rejected. - HON'BLE ARCHANA WADHWA (J) AND S.S. SEKHON (T), MEMBERS For the Appellant : P.K. Katiyar, DR For the Respondent : T. Viswanathan, Advocate, Order S.S. Sekhon, Member (T) 1.1 The respondents imported a consignment of molybdenum concentrates claiming the same to be falling under Chapter 26 of the Customs Tariff. The goods have been described in the statement of facts as under :- The goods in question are molybdenum ore molybednite (MoS2) which has been subjected to the process of concentratic and roasti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e obtained does not amount to manufacture in India, then the imported concentrate would also not be subjected to countervailing duty, (ii) if the goods are manufactured or produced in India, are exempted or at NIL rate of duty due to any excise exemption notification, the imported goods would be subjected to nil rate of CV duty. 1.2. The terms concentrate and Ore as per Kirk-Othmer s Encyclopaedia of Chemical Technology, Vol. 16, Page 315 is extracted below : Concentrate an action to intensify in strength or purity by the removal of valueless or unneeded constituents, i.e., separation of ore or metal from its containing rock or earth. The concentration of ores always proceeds by steps or stages. Liberation of mineral values is often the initial step. Concentrate also means a product of concentration i.e. enriched ore after removal of waste in a beneficiation mill . Ore. A mineral or aggregate of minerals from which a valuable constituent, especially a metal, can be recovered at a profit. In view of the above term concentrate is to be understood as nothing but enriched and prepared ore. 1.3. In Minerals and Metals Trading Corporation of India Ltd. v. UOI - 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s thereafter subjected to spiraling and as a result the heavier minerals were separated. By this process, about 80% of the lighter sand was being eliminated and the remaining 20% was brought to the Mineral Separation Plant by pumping the slurry through pipe, the individual minerals were separated then by processes like drying electro-static separation, magnetic separation and gravity separations, final recovery of minerals was less than 10% of the sand dredged from the sea of shore, Revenue s contention was that the minerals so recovered by above process were not ores but were instead concentrates that Concentrates are different from ores Revenue relied upon the fact that the purity in the concentrates was of very high level, content that the minerals so obtained ceased to be ores . However their plea was not upheld. The tribunal held that the process carried out by the assessee would not amount to manufacture. The relevant portion of the decision is extracted below :- 9. The Apex Court has held in the case of Hyderabad Industries and Ors. v. Union of India Ors. That no manufacture of a new or distinct commodity takes place on account of the process of separation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter balancing the excise duty leviable, we are clearly of the opinion that additional duty can be levied only if on a like article excise duty could be levied. The decision in Khandelwal Engineering Works case to the extent it takes a contrary view, does not appear to lay down the correct law. Similarly, following law laid down in CCE v. TISCO, 2003 (154) E.L.T. 343 (S.C.) will apply : ... The learned counsel for the appellant tried to argue that the duty leviable under Section 3 of the Customs Tariff Act is a countervailing duty which is levied merely on the import of goods and no other consideration should come into picture. This contention is totally without any merit In any case, it stands concluded against the appellants as per the decision of this court in Hyderabad Industries case (supra). Similar argument raised on behalf of the Revenue in the said case was repelled by the Constitution Bench in the said judgment. Hence, no CV duty is imposable on the concentrate imported by the respondents. 1.4. Examining the plea, ore and concentrate are one and the same and hence entitled for exemption under Sl. No. 10 of 5/98-C.E. it is found. The competing entries consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entrate a specis . Therefore, separate mention of ore and concentrate in Heading 26.03 ipso facto will not imply they are different. Therefore, term ore covered by Notification No. 5/98 can apply to concentrate also. 1.5. HSN Explanatory Notes and the technical literature, also support the view of ore to include concentrate . In view of the definition of ores contained in Note 2 of Chapter 26 also, the concentrate is eligible for exemption. This Note 2 of Chapter 26 defines ores as under : For the purposes of Heading Nos. 26.01 to 26.17, the term Ores means minerals of mineralogical species actually used in the metallurgical industry for the extraction of mercury, of the metals of Heading No. 28.44 or of the metals of Section XIV to XV, even if they are intended for non-metallurgical purposes. Heading Nos. 26.10 to 26.17 do not, however, include minerals which have been submitted to processes not normal to the metallurgical industry . The use of the imported goods is for recovery of metal. Thus, the primary condition of Note 2 of Chapter 26 viz. the imported goods are used for the metals of Section XV, is satisfied. The second condition of Note 2 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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