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TMI Blog2014 (6) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-heading note 1(b) of Chapter 75, in Nickel alloys, nickel has to predominate by weight over each of other constituents and, therefore, a base metal alloy in which copper predominates by weight can not be treated as Nickel alloy. Even in term of Section Note 5 to Section XV, ‘Nickel’ silver alloy in question, can not be treated as Nickel alloy but has to be treated as copper alloy. There is, thus, conflict between the wordings of the heading 75030010 and the section note and sub-heading notes. Therefore the sub-heading 75030010 pertaining to “Nickel waste and scrap”, would cover only that scrap of Nickel or its alloy in which Nickel predominates by weight over other constituents. The goods, in question, in which copper predominates by weight over other constituents cannot be classified as Nickel alloy scrap and hence the same cannot be treated as ‘Nickel’. In view of this, the goods, in question, are not covered by S. No. 438 of Notification No. 21/2002-Cus., notwithstanding the fact that the goods have been classified under sub-heading 75030010, which in my view, is a mistake - goods, in question, being a copper alloy are not covered by S. No. 438 of the table of the Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of value. The notice culminated into an order passed by the Assistant Commissioner, ICD, New Delhi, holding as under :- (i) That the description of the goods as per examination report and CRCL report is Nickel Silver Turning Niece and not Nickel Silver Turning Malic as declared in the Bills of Entry; (ii) The transaction value declared under Rule 4 read along with Section 14 of the Customs Act, 1962 do not represent the value of the imported goods, hence, the same is rejected, and the assessable value is re-determined under Rule 8 of Customs Valuation Rules as USD-4346 PM/T; and (iii) That the imported goods would not fall within the ambit Article of Nickel, hence, the benefit of concessional rate of duty sought vide Sl. No. 438 under Customs Notification No. 21/2002 dated 1-3-2002 is denied and BCD @ 12.5% is to be charged. 5. The said order of the Assistant Commissioner was challenged before the Commissioner (Appeals) who held in favour of the assessee on the point of valuation but denied the benefit of Notification No. 21/2002. Hence, the said order of the Commissioner (Appeals) has been challenged by both .sides. 6. As regards assessee s claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of deciding the applicability of notification. 10. Admittedly the Assistant Commissioner of Customs has held that the goods to be nickel silver turning niece falling under Chapter 75 of the tariff. If that be so, we really fail to understand as to how nickel silver turning which admittedly falls under Chapter 75 would not earn the benefit of concessional rate of duty as per serial no. 438 of Notification 21/2002. As such, we set aside the impugned order denying the benefit of notification and allow the appeal. 11. As regards Revenue s appeal, the same is against that part of the impugned order, vide which he has held in favour of the assessee on the point of valuation by following the judgment of Hon ble Supreme Court in the case of Eicher Tractor - 2000 (122) E.L.T. 321 (S.C.). Inasmuch as there is no evidence of rejection of transaction value and no evidence of contemporaneous import, he has held that the transaction value has to be accepted as assessable value. 12. We find that even in their memo of appeal, the Revenue has not placed any evidence on record to reject the assessee s transaction value. In such situation, we find no reason to interfere with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niobium (columbium), rhenium and thallium. 5. Classification of alloys (other than ferro-alloys and master alloys as defined in Chapters 72 and 74) : (a) an alloy of base metals is to be classified as an alloy of the metal which predominates by weight over each of the other metals; (b) an alloy composed of base metals of this section and of elements not falling within this section is to be treated as an alloy of base metals of this section if the total weight of such metals equals or exceeds the total weight of the other elements present; (c) in this section, the term alloys includes sintered mixtures of metal powders, heterogeneous intimate mixtures obtained by melting (other than cermets) and intermetallic compounds. 6. Unless the context otherwise requires, any reference in this Schedule to a base metal includes a reference to alloys which, by virtue of Note 5 above, are to be classified as alloys of that metal. 7. Classification of composite articles : Except where the headings otherwise require, articles of base metal (including articles of mixed materials treated as articles of base metal under the Interpretive Rules) containing two or more base metal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in Customs Tariff to introduce eight digit level tariff items. 22. To deal more specifically with the dispute at hand the importer has claimed exemption at S. No. 438 of Customs Notification No. 21/2002-Cus. To be eligible for this notification, the goods have to satisfy two criteria. Firstly it should be classifiable under Chapter 75. This is satisfied in view of the entry at 75030090. Then it has to fit into the description of the goods in the notification that is Nickel or Articles of Nickel . The item is not nickel in view of the fact it contains only 13.90% of Nickel and in view of the express provisions of Section Notes 3, 5, 6 and 7 of Section XV of Customs Tariff. If the material is not nickel, it cannot be articles of nickel either. Interpretative Rule 1 of Customs Tariff states as under. Titles of Sections, Chapters and sub-chapters are provided for ease of reference only : for legal purposes, classification shall be determined according to the terms of headings and any relative Section or Chapter notes and provided --------- . 23. So the fact that the heading of Chapter 75 reads Nickel and Article thereof is not a sufficient reason to conclude that eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above mentioned order set aside, the Assistant Commissioner s order of enhancement of the declared value. Against this order of the Commissioner (Appeals), both the department as well as appellant have filed appeals before the Tribunal. The Department in its appeal has challenged the Commissioner (Appeal) s order setting aside the enhancement the declared value, the appellant in their appeal to Tribunal have challenged the Commissioner (Appeals order upholding the denial of exemption Notification No. 21/2002-Cus. The difference between Hon ble Member (Technical) and the Hon ble Member (Judicial) is in respect of eligibility of goods for exemption under Notification No. 21/2002-Cus. (Serial No. 438). While according to Hon ble Member (Judicial), the goods, in question, are eligible for Notification No. 21/2002-Cus. (Serial No. 438), as the same can be considered as nickel, according to Hon ble Member (Technical), the goods, in question can not be considered as nickel alloy as the copper predominates by weight, and hence are not eligible for exemption. 26. Heard both the sides, in respect of point of the difference. 27. Sh. Piyush Kumar, Advocate, the learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch predominate over other constituents, in terms of section note 3 of Section XV, the goods, in question, have to be treated as base metal. In terms of section note 5 of Section XV, an alloy of the base metal is to be classified as an alloy of the metal which predominates by weight of over each of the other constituents on this basis, in this case the metal scrap, in question, has to be treated as scrap of copper alloy and not of nickel alloy, in terms of section note 6, the Section XV, unless the context otherwise requires any reference in the schedule to a base metal includes a reference to its alloys. Since virtue of note 5, the goods, in question, are to be classified as alloy of copper, they are to be classified as copper, under Chapter 74, not nickel. 30. Though the nickel silver turnings covered by ISRI code word Niece is mentioned in the Tariff under sub-heading 75030010 pertaining the Nickel waste and scrap , which would also cover the waste and scrap of Nickel alloy, in term of sub-heading note 1(b) of Chapter 75, in Nickel alloys, nickel has to predominate by weight over each of other constituents and, therefore, a base metal alloy in which copper predominates b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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