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TMI Blog2014 (8) TMI 246X X X X Extracts X X X X X X X X Extracts X X X X ..... lone Revenue officers before hearing - the request made by the company for recusal is rejected. Classification of goods - Bituminous Coal or Steam Coal - benefit of lower rate of duty - benefit of concessional rate of duty under Notification No. 12/2012 - Whether the coal imported by the appellants is to be charged to basic customs duty and CVD treating the same as Bituminous Coal or Steam Coal - Department's contention is that according to sub-heading Note 2 of Chapter 27, the steam coal imported by the appellants which answers to the definition of bituminous coal, has to be classified as bituminous coal and therefore, the lower rate of duty benefit extended to steam coal would not be available for the importers - Held that:- Court cannot go by the history of taxation and we also cannot go by the trade parlance especially when a product is defined in the tariff. In fact, the learned sr. counsel fairly admitted that a statutory definition overrules trade parlance. Nevertheless, it was his submission that this case stands on a different footing and he would urge several more grounds in addition to the submissions hereinabove to support his contention that the impugned order class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic definition available in the tariff, trade parlance is not relevant. What is required the Department is to show that what is imported fulfills the definition as given in the tariff and if in trade parlance the product has another name, that could not make a difference to the classification issue. In any case, it is nobody's case, that bituminous coal is always called as steam coal. In fact, steam coal is also bituminous coal but vice versa is not always true. Therefore if the Department is able to show that what is imported is bituminous coal, in our opinion, the Department need not travel further especially In view of the fact that bituminous coal can be coking coal or steam coal also and tariff has chosen to give them separate headings and therefore it becomes necessary to classify coal imported as coking coal or steam coal only if and when it does not covered by the definition of bituminous coal given in the tariff. Invocation of extended period of limitation - in trade parlance, the coat imported by the appellants is steam coal. In any case this has not been contested. Further even if the exemption notification was issued, for quite some time, the Department had not taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeded to hear the appeal. An Incidence has been cited wherein the Hon'ble Chief Justice of Supreme Court had recused himself on the advice of senior counsel Shri F.S. Nariman who was present in the Court. R.2. We find that the letter is based on incorrect information. It was not mentioned that the matter had been discussed with me by the Revenue. What was mentioned was that, I had heard about the issue and I had also heard that even one of the importers had informed the investigating officers that importers also are in agreement with the view taken by the Revenue about classification. This was a casual conversation, heard by me and there was no application of mind on the issue and I had no occasion to discuss or study the issue at all thereafter. Even though it was a casual conversation heard by me in the middle of a group of officers, yet I had offered to recuse since it has always been our endeavour to be not only fair but also seen to be fair. R.3. Unfortunately the letter was received on 09.06.2014. In fact, the offer to recuse was made on 22.05.2014, the day on which the matter was part-heard after the observations of the Bench regarding recusal and the submission b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the Bench but are only trying to prevent anyone from contending that the Hon'ble Bench ought not to have heard the matter. We do not find any justification for this apprehension or submission. R.7. Moreover, the recusal instance in the case of the then Hon'ble Chief Justice is not comparable since according to the news item enclosed to the company's letter, Justice Kapadia had declared that he and his wife investments in shares had a market value of ₹ 41 lakhs which in the Indian context, may not be considered a small amount. Moreover having interest in one of the private parties in dispute is entirely different from a casual conversation between officers not followed by a discussion about the issue nor considered in greater depth and cannot be compared with the case wherein there was a pecuniary interest. R.8 The Hon'ble Supreme Court in the case of Subarea Roy Sahara Vs UOI ors. in the decision rendered on 06/05/2014, made several observations which in our opinion are worth reproducing and taking into consideration. In this decision considering the request by the counsels for the appellant requesting them to recuse themselves from hearing the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favour, affection or ill will while upholding the constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting / Bench preference or brow-beating the Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office. The above determination of the High Court of Delhi was assailed before this Court in R.K. Anand v. Delhi High Court, (2009) 8 SCC 106. The determination of the High Court whereby Mr. Justice Manmohan Sarin declined to withdraw from the hearing of the case came to be upheld. R.9. In this case also, if we accept the submissions and recuse ourselves after spending 12 hours of our valuable time in hearing the matter wherein a senior counsel, special consultant for the Revenue and two advocates had argued the matter, it would be a criminal waste of valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is absolutely no ground to take a view that even Government would benefit. Unlike the case before the Hon'ble Supreme Court where a decision had already been given and after the decision Hon'ble Supreme Court was compelling Mr. Subrata Roy Sahara to make the payments by ordering detention, in this case, we had not even heard the matter and only it is an apprehension on the part of the company which is yet to file an appeal before us and which was not even represented by anybody and which is not even making mention of the preliminary discussion in this regard we had which has been referred in the order referred to explaining why the final order is being passed even though stay applications were listed. We consider that it would be totally unfair and unethical on our part to refrain from pronouncing the order after spending considerable time in the order for which we are paid and after hearing learned counsel for considerable time which is also equally valuable time for which they are paid by tax payers. R.12. Hon'ble Supreme Court's observations in para 107 also, in our opinion, is relevant and this also supports our view that we need not recuse ourselves. R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the issue involved is common and in all the cases only stay applications have been listed for hearing. The hearing first started in the case of M/s. Coastal Energy Pvt. Ltd. on 22/05/2014. On that date after matter was heard for some time, learned sr. counsel for the appellant sought adjournment and accordingly the matter was adjourned to 27/05/2014. On 27/05/2014, there was a request made by the AR for the Revenue that the Department would like to appoint Special Consultant and therefore the matter may be adjourned. As per the request made by him and as per the date sought by him with the consent of other side, the matter was fixed for hearing on 03/06/2014. On 03/06/2014, when the matter came up for hearing, both the sides were asked whether hearing should be proceeded at all since according to both the sides, matter had been heard in Ahmedabad for waiver of pre-deposit and grant of stay in the case of another appellant and the order was reserved. After some discussion, both sides intimated the Bench that since the issue involved is an all India issue and the appeals have been filed before the Benches in several places, it would be appropriate that the matter can be decided fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porters. On this ground, all the impugned orders have been passed and are being challenged. 4. On the last date of the hearing i.e. on 06/06/2014, Shri PRV Ramanan, learned special consultant for the Revenue wished to submit written submissions and promised to submit the same on 09/06/2014 and hand over copy to the defence counsels also. On the part of the defence, it was submitted that they would submit their submissions if any on 10/06/2014. Accordingly on 09/06/2014, the written submissions of special consultant were received and submissions from the counsel for M/s. Coastal Energy were also received on 10/06/2014. 5. Shri V. Sridharan, learned sr. counsel, assisted by Shri G. Shivadass, advocate, on behalf of M/s. Costal Energy Pvt. Ltd., took us through the history of taxation in respect of coal on the first day and since this gives a background of the classification as well as duty structure in a broad manner, we consider it appropriate that the same should be briefly covered. There was no definition of different types of coal in British Tariff Nomenclature which was being followed all over the world prior to introduction of HSN. After the introduction of HSN, India fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In March 2012, exemption from basic customs duty for steam coal with CVD of 1% was introduced for a period of two years specified in the notification. In the year 2013, taking note of the fact that there was rampant misclassification as observed by the Hon'ble Finance Minister, the rates of duty for bituminous coal as well as steam coal was brought on par. 7. Hon'ble Finance Minister In his budget speech for 2012-13 observed as follows:- 184. Domestic producers of thermal power have been under stress because of high prices of coal. I propose to ease the situation by providing full exemption from basic customs duty and a concessional CVD of 1 per cent to Steam coal for a period of two years till March 31, 2014. Full exemption from basic duty is also being provided to the following fuels for power generation: Natural Gas and Uquified Natural Gas; and Uranium concentrate, Sintered Uranium Dioxide in natural and pellet form. Learned counsel submitted that this shows that the intention was to give relief to domestic power producers who are using steam coal and other fuels specified in the speech. In the budget 2013, the Hon'ble Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r rate of duty was prescribed for steam coal in the Budget of 2012, applying definition of bituminous coal rigidly and treating bituminous coal and steam coal as separate was not correct. Besides quoting the history of taxation of the coal, the appellants also pressed the ground that in trade parlance, steam coal can be bituminous coal also and vice versa. A lot of technical material was placed to make the submission that steam coal, coking coal and bituminous coal cannot be differentiated and if that is done, entries related to coking coal/steam coal may become redundant which we will be dealing with at a later stage in that particular category of submission. At this stage, it was the submission that there was no dispute at all in the history of taxation of coal about steam coal. It was also submitted that the appellants M/s. Coastal Energy Pvt. Ltd. had been importing coal at least for the past 10 years and all through, they have been describing the coal as steam coal and the same was assessed as steam coal and no questions were asked. In view of the fact that throughout the period, coal was being assessed as steam coal and there was no dispute about classification and descriptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urgical coke. Sub-bituminous and thermal bituminous coal are used essentially as fuel to : generate electricity generate steam for creation of high temperature thermal reservoirs or traction purposes. public heating systems. to meet households needs- cooking, heating of water etc. Metallurgical bituminous coal as the name shows is used essentially in the production of coke which is - a primary input for producing iron and steel; also used in other industries of metal production. Anthracite is the least common and most expensive of the coals. It has some unique features: the capacity, for instance, for a smokeless fire; used for specific purposes. 13. On the basis of technical literature and various authoritative books, it was submitted that all coals of a quality that allows production of coke suitable to be used as a blast furnace charge is known as coking coal. Steam coal is a coal which is suitable for use in power generation and generation of steam. The basis of the two classifications are that one is based on metamorphism and other is based on end use. Therefore it is submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Heading/ Sub- heading/ Tariff Item Description of goods 2701 Coal, briquettes, ovoids and similar solid fuels manufactured from coal -Coal, whether or not pulverized, but not agglomerated 2701 11 00 -- Anthracite 2701 12 00 -- Bituminous coal 2701 19 -- Other coal : 2701 19 10 --- Coking coal 2701 19 20 --- Steam coal 2701 19 90 --- Other 2701 20 - Briquettes, ovoids and similar solid fuels manufactured form coal: 2701 20 10 -- Anthracite agglomerated 2701 20 90 Other 17. In this regard, we would be failing in our duty if we failed to record our appreciation for the clarity brought about by the learned special consultant as regards the meaning of -, --, ---, ----', Rules of Interpretation and meaning of heading, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... items imported, since Rules 2 to 5 relate to headings, we have to go to Rule 6 for determination of the sub-headings. 20. Before this it is also necessary to take note of the guidelines available in the additional notes given to the rules which is also part of the rules. According to additional notes:- In this schedule,- (1) (a) Heading , in respect of goods, means a description in list of tariff provisions accompanied by a four-digit number and includes all sub-headings of tariff items the first four-digits of which correspond to that number; (b) sub-heading , in respect of goods, means a description in the list of tariff provisions accompanied by a six-digit number and includes all tariff items the first six-digits of which correspond to that number; (c) tariff item means a description of goods in the list of tariff provisions accompanying eight-digit number and the rate of customs duty. Above additional notes make it clear that the comparable items have to be identified by the number of digits accompanying the headings. It was submitted by the special consultant for Revenue that the number of digits and the dashes invariably tally and follow a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coal'. 23. As already mentioned earlier Rule 6 of the General Rules would apply to the present case and the rule reads as under: For legal purposes, the classification of the goods in the sub-headings of a heading shall be determined according to the terms of those sub-headings and any related sub-heading Notes and, mutatis mutandis, to the above rules, on the understanding that only sub-headings at the same level are comparable. For the purposes of this rule the relative Section and Chapter Notes also apply, unless the context otherwise requires. This brings us to the position that we have to examine whether according to the rules under which heading the item is classifiable and thereafter we have to see whether section notes/chapter notes have to be applied since if the context otherwise requires, said notes, need not be applied. It was the submission that in this case the head notes need not be applied on behalf of the appellants. 24. We have already reproduced the sub-heading notes above. In the light of the above, we have to examine how the classification of the product has to be approached and what would be the result thereafter. 25. Coal has been fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on at sub-heading levels in this case. 32. It was submitted by the learned special consultant : The GI Rules have come under vigorous scrutiny of various judicial fora including the Apex Court and as per the principle of law settled by them, classification shall be determined according to the terms of the headings and any relevant section or chapter notes; that the section notes and chapter notes in the Customs Tariff Act are part of the statutory tariff and relevant headings in the tariff have to be interpreted and applied in the light of section notes and chapter notes which are statutory and binding like the headings themselves; that the scheme of the Customs Tariff Act is to determine coverage of respective headings in light of the section notes and chapter notes and in this sense the section notes and chapter notes have an over-riding force on the respective headings and are therefore relevant in the matter of classification of goods under the Customs Tariff; that these section notes and chapter notes sometimes expand and sometimes restrict the scope of certain headings; that Rule-1 ibid gives primacy to the section notes and chapter notes along with terms of the he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less there is anything repugnant in the subject or context or unless the context otherwise requires.. Even in the absence of an express qualification to that effect such a qualification is always implied. 31 However, it is incumbent on those who contend that the definition given in the interpretation clause does not apply to a particular section to show that the context in fact so requires. 35. In addition it was also submitted that all parts of a statute have to be read together and no portions should be read in isolation. In the Principles of Statutory Interpretation of G.P Singh (Volume V) page 415 and 416 it is said that every clause of a statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject matter. It is spoken of construction ex visceribus actus . It is the most natural and genuine exposition of a statute , laid down Lord Coke to construe one part of a statute by another part of the same statute, for that best expresseth the meaning of the makers. To ascertain the meaning of a clause in a statute the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal/kg and of non-agglomerating character is not considered as coking coal' in the trade parlance. Our attention was drawn to page 531 (ASTM Standard Classification of Coals) in Volume VI of the paper book submitted by the appellants. In page 531, Methods of Analysis and Testing' has been indicated according to ASTM. We could not find any reference to GCV on page 531 as was submitted in the written submission. However, we find in page 530, a Table of Classification of Coals by Rank'. In this Table-1, coal with Gross Calorific Value (GCV) of equal to 10500 would be agglomerating and it would be non-agglomerating also. If GCV range between 10500 to 11500 (10500 is equal to 5833 kcal/kg), it can be agglomerating or non-agglomerating. It was submitted in the written submission that the contention of Revenue that there can be coking coal of non-agglomerating quality is without any material and contrary to all technical literature produced by the appellants. According to the definition of International Energy Association (IEA) for coking coal, cited by the appellants in page 519 of Volume VI, coking coal is bituminous coal with a quality that allows the production of coke. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued only in respect of 400 Shipping Bills which would show that in respect of the remaining 133 Bills of Entry, the claim of the appellants that what was imported is steam coal has been accepted thereby accepting the fact that GCV is less than 5833 kcal/kg in those Bills of Entry. 43. It was also submitted that as per IEA Coal data System, coking coal has GCV of 5709 kcal/kg based on an ash-free but moist basis whereas coal with GCV of 5833 kcal/kg was mineral matter free basis. From the ASTM Standard submitted by the appellants themselves, we find that GCV of 5709 kcal/kg on moist, ash-free basis is equivalent to GCV of 5829 kcal/kg on moist, mineral free basis. Therefore, we do not find any discrepancy in this regard. 44. In any case, we have already considered ASTM standard regarding agglomerating and non-agglomerating coal and range of GCV and have come to the conclusion that the coal having GCV of 10500 Btu to 11500 Btu can be either agglomerating or non-agglomerating. 45. Another submission that was made and required to be examined is regarding the clause unless the context otherwise requires and it was submitted that in this case, context requires otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uminous coal covers the item imported or not. Once it covers, that is the end of the matter. If the GCV is less than 5833 kcal/kg and according trade parlance, the product would become classifiable under steam coal. Therefore, it cannot be said that the intention of the statute or intention of the legislature is being defeated by process of reclassification by Revenue. 47. At this stage, it would be appropriate to consider the applicability of decision of the Tribunal in the case of Swarup Fibre Industries (supra). Reliance placed on the decision in Swarup Fibre Industries ' case is misplaced. In that case, the item to be classified was vulcanized fibre' in sheet form. The dispute was whether these would be classified under primary forms' or as fully finished sheets. There was no reference to a third tariff description as being argued herein. Ambiguity arose because the definition of primary forms did not specify sheets' as one of the primary forms, though it was an admitted fact that in the context of vulcanized fibre, sheet form was one of the primary forms. The decision was rendered in the context of Central Excise Tariff, which was adopted from the HSN. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ospectively appears to be a conscious one. Needless to say that the Government is always free to extend exemption retrospectively and may do so and at present, from the speech what emerges is the fact that the subsequent notification cannot be used to interpret earlier notification in favour of the assessee. 51. Another aspect to be noted is that in the assessment procedure, the first step is to determine the classification of the goods. Once classification is determined, we would proceed to examine the applicability of notification. Doing vice-versa is not correct. If the notification contains the tariff heading and description of the goods and both tally with relevant tariff heading in the Tariff, the applicability of exemption has to be decided on the basis. In this case, the steam coal as well as tariff heading are in the Notification. Once classification is determined as bituminous coal, the heading in the notification for the item to be exempted does not get covered at all because either tariff heading or description or both do not tally with the classification of the goods. Once the exercise of classification is completed, interpretation of the notification has to be on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evail. However coking coal and steam coal vis-a-vis bituminous coal, trade parlance test need not be applied since legislature has defined bituminous coal. 55. Learned counsel thereafter placed reliance on the decision in the State of U.P. vs. Deepak Fertilizer and Petrochemical Corp. Ltd. [(2007) 7 VST 535 (S.C.)] decided on 14.5.2007. In this case, legislature had prescribed a different rate of duty for NPK fertilizer as 23:23:0 which had been omitted from the list of fertilizers of NPK category in the notification. It was held that there was no classification among various chemical fertilizers of the same class. We find that on facts, this decision would not be applicable. 56. Learned sr. counsel for M/s Coastal Energy Pvt. Ltd. submitted that as an alternative, the appellant is not at all liable for payment of CVD. It was his submission that CVD becomes liable when the product arises because of manufacturing or production activity. He relied on the decision In the case of Commissioner of C. Ex. Cus., Bhubaneswar-I vs. Tata Iron and Steel Co. Ltd. [2003 (154) E.L.T. 343 (S.C.)]. He submitted that in this case, even though this decision was rendered in the context of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows : 9. In the present case also Section 6 of the Coal Act as quoted above specifically provides that excise duty is levied on the coal raised and dispatched. Therefore, the Legislature specifically understood that there is no question of manufacturing or producing coal. Coal is required to be raised and hence a different phraseology has been used in the said Section. Even Section 7 of the Act only empowers the Central Government to impose on all coal imported or brought into India a duty of customs at the rates equivalent to the rates of duty of excise leviable under Section 6. It nowhere provides that coal is produced or manufactured in India. Hon'ble Supreme Court also observed in paragraph 10 that - Even if coal is washed and ash contents are reduced, Section 6 uses the phraseology ( of all coal raised ) and on all coke manufactured and dispatched , which would mean that coke is manufactured while coal is only raised. Hon'ble Supreme Court interpreted the words coal is raised and dispatched' and did not go into the question as to what are the processes undertaken in the coal mines. The Hon'ble Supreme Court also did not go into the question as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by learned counsel. He submitted that the bituminous coal is cut to the required size so that it can be used for the purpose of coking/steaming and subsequently coal is tested and it is found that coal is having higher swelling index and depending on the contents of ash and sulfur, such coal will be suitable for use as coking coal'. If swelling index the coal is lower and ash and sulfur contents are different, such coal will be suitable for use as steam coal'. As submitted by one of the appellants, steam coal has distinct name, use and character and therefore, is clearly distinguishable from bituminous coal and therefore, process has to be considered as manufacture. He also submitted that classification is done as the goods are presented at the time of import. This would show that even if we assume that bituminous coal when it is sold as bituminous coal itself also is crushed, sized and graded, the processes amount to manufacture since what is extracted will be coal ore and what emerges is specific category of coal which marketable and sold. Ore which is extracted in bulk and in large size may not be straightaway marketable unless quality parameters are verified, washe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that inputs for silk yarn and silk fabric namely raw silk / silk filament and silk yarn are not liable to excise duty and therefore, taking credit thereof by Indian manufacturer does not arise. Once again our observations made in the case of Mapsa Tapes Pvt. Ltd. (supra) would be applicable to this case also. 62. The next decision relied upon by learned counsel is in the case of C.C. (Import) vs. Ashima Dyecot Ltd. [2011 (267) E.L.T 122 (Tri.-Mumbai)] . In this case also, the precedent decision taking a view that inputs contained in imported commodity not shown as chargeable to excise duty in which case availment of Cenvat credit by Indian manufacturer ruled out and the benefit of exemption is allowed. In this case, no such evidence has been brought out before us nor has been claimed as Indian manufacturer at all to take Cenvat credit. 63. Learned special consultant for Revenue submitted that condition in the notification has been deliberately worded so that benefit would accrue only to the domestic coal manufacturer vis-a-vis importer of coal. Eligibility to credit under Rule 3 or Rule 13 of Cenvat Credit Rules, 2004, in respect of the inputs / input services used for manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms vs. Keshav Universal [2007 (215) E.L.T. 139 (Tri.-Mumbai)] wherein while allowing the appeal of the Department in a matter involving similarly worded notification, the Tribunal has held that : 2.The eligibility to credit is only when the goods are manufactured in India and credit is not available on imported goods. Therefore, the stand of the department is that since the imported goods are not the goods on which Cenvat credit or Modvat credit can be taken the Notification obviously does not cover imported goods, is well founded. In this view of the matter, we hold that the Commissioner (Appeals) is wrong in extending the benefit of the Notification to the importers herein, and accordingly set aside the impugned order and allow the appeal. 66. Further, learned special consultant for Revenue also relied upon the decision in the case of Motiram Toltaram vs. Union of India [1999 (112) E.L.T. 749 (S.C.)] . The relevant paragraphs 2, 3, 11 12 relied upon by learned special consultant are reproduced below:- 2. The appellants imported consignments of polyvinyl alcohol on which additional duty under Section 3 of the Customs Tariff Act was sought to be imposed. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossible that vinyl acetate monomer manufactured in India is exported and the same is used in the manufacture of polyvinyl alcohol which, In turn, is imported into this country in which case the importer would be able to show that the condition stipulated in the said notification has been complied with. 12. It is contended by Shri Prashant Bhushan that on the polyvinyl alcohol imported by the appellants, raw material used was vinyl acetate monomer on which no duty under the Indian law has been paid. He submits that the appropriate duty being nil because it was not manufactured in India, therefore it must be regarded as if appropriate duty had been paid relying upon Collector of Central Excise, Patna v. Usha Martin Industries [1997 (94) E.L.T. 460 (S.C.) = 1997 (7) SCC 47] and the appellants would be entitled to the benefit of the Notification in question. We are unable to agree with this contention. Vinyl acetate monomer is an Item which is manufactured in India and a rate of excise duty is leviable thereon. On the polyvinyl alcohol which has been imported, vinyl acetate monomer has not been subjected to the appropriate amount of duty payable under the Indian law. It is only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erentiated at all. As regards the Board's Circular No.41/2013-Customs dt. 21/10/2013 referred to by the learned counsel to support the submission that bituminous coal and steam coal as separate products, we find that this circular was issued for the purpose of examination of applicability of concessional rate of CVD and has nothing to do with classification. The circular issued for one purpose cannot be and should not be considered for determining classification when the intention is not to do so. As regards the submission that there is no bar on steam coal having same values as bituminous coal, we find that this is not acceptable. We have already dealt with this issue in detail and we have found that steam coal with certain characteristics would definitely not fall under bituminous coal and in such situations steam coal is classified as steam coal and not as bituminous coal. In this regard, we had already mentioned and referred to the submission by the special consultant that in Vishakhapatnam, in respect of 533 Bills of Entry leading to the issue, in respect of 133 Bills of Entry no demand was raised since Department accepted that the coal imported was steam coal and not bitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to imagine that bituminous coal and anthracite would be exported in the form of boulders and as they are removed from the mines. In any case, the question as to whether the definition when given by the legislature has more value or the trade parlance has been discussed and considered earlier. Moreover, once an item becomes classifiable as bituminous coal, we have already taken a view that it would lead us to the conclusion that there is nothing wrong with the tariff nor there is any need to go into intention of the legislature since no heading becomes redundant or there is no conflict to consider this submission at this stage and we do not think the submissions here would make a difference. 73. Shri B.V. Kumar, learned counsel appeared for M/s. Maruthi Ispat Energy Pvt. Ltd., He relied on the test report submitted to submit that all the test reports, the data in respect of volatile matter and gross calorific value and as received basis has been taken. It was his submission that Department has not cited the standards prescribed for steam coal that certificate of sampling received from the overseas supplier could be compared with such standards. We have already dealt with this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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