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TMI Blog2014 (3) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of Magensia Spinel Bricks, imported by the main appellant are required to be classified under CTH 69021090 , as 'other bricks' and not under CTH 69021010 and accordingly denied the benefit of Notification No.90/2004-Cus, dt.10.09.2004 and Notification No.40/2006-Cus, dt.02.05.2006. A demand of Rs.1,51,62,779/- has been confirmed against the main appellant, along with interest under Section 28AB of the Customs Act, 1962. An equivalent amount of penalty of Rs.1,51,62,779/- is also imposed upon the appellant under Section 114A of Customs Act, 1962. Shri Alok Sanghi, the other appellant, has been visited with a penalty of Rs.5 lakh under Section 112(a) of Customs Act, 1962. 2. Shri T. Vishwanathan (Advocate) and Shri Anand Nainawati (Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported under DFIA/DFRC scheme only after discharge of export obligations. That DFIA/DFRC scheme permit import of all the inputs used in the manufacture of export goods, as per SION Sr.No.A 1050 reproduced below, prescribed by Foreign Trade Policy Norms (Duty Exemption Scheme). Sr. No, Export Item Import Item Quantity Quantity Allowed A 1050 Ordinary Portland, Cement/Portland Cement Pozzolona/Portland Slag Cement/Oil Well Cement Coal OR 0.22 MT/ MT 1 Raw Petroleum Coke (Minimum Sulphur content 4% and fixed carbon below 80%) 2 Bauxite (Percentage Alumina content not less than 86%) (It shall be given if export product contain minimum 60% C3S content) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities. That if the exemption was not admissible, then appellant could have paid duty at the time of import and claimed drawback or other export related incentives at the time of export of goods. That DGFT has not cancelled their licences but have issued a clarification in favour of the assessee. That Customs Authorities could not have impinge upon the jurisdiction of DGFT and proceed to adjudicate the case against the appellants. That Customs can refer the matter to DGFT in case of any doubt but cannot challenge the validity of a licence. 3. Shri G.P. Thomas (A.R.) appearing on behalf of the Revenue argued that the classification of the imported goods has been correctly made by the adjudicating authority under CTH 6902 1090 as 'other brick ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ricks, blocks, tiles and similar refractory ceramic constructional goods, other than those of siliceous fossil meals or similar siliceous earths (+). 6902.10- Containing by weight, singly or together, more than 50% of the elements Mg, Ca, or Cr, or expressed as MgO, CaO or Cr2O3 6902.20 Containing by weight more than 50% ofAlumina (Al2O3), of Silica (SiO2) of a Mixture or compound of these products 6902.90 Other This heading covers a group of refractory products (other than those of heading 69.01) normally used in the construction of ovens, kilns, furnaces or other plant for the metallurgical, chemical, ceramic, glass and other industries. It includes, inter alia: (1) Bricks of all shapes (parallelepiped, wedge shap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re using this quality of bricks as per SION A-1050. In the case of the appellant also the entire quantity imported has been used in the manufacture of goods for which export obligation has already been fulfilled. There is no evidence or argument on behalf of the Revenue that the Refractory bricks imported by the appellant have been diverted or sold to others. In the absence of any action taken by DGFT and in the absence of any statutory binding that classification sub-headings given under CTH 69.02 of the Customs Tariff Act have to be followed for interpreting descriptions given in SION, it is held that the description of the Refractory Bricks imported by the appellant will be Magnesite Refractory Bricks (For those using only this quality o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 was declared by the appellant. In the case of exemption of crores worth of Customs duty, it is open to the Revenue to seek any details from the appellant or conduct chemical testing to arrive at the correct classification of the imported goods under the Customs Tariff. But, as already held that exercise will also be only relevant for the classification to be done under the Customs Tariff and will not be relevant for the purpose of a classification to be done under DFIA/DFRC and SION prescribed by the appropriate authority of DGFT. Once appellant has used the entire quantity of imported goods with respect to the manufacture of exported goods, it cannot be said that there could be any intention to evade Customs duty. Alternately, appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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