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TMI Blog2015 (1) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... facts that arise for consideration in all these Stay Petitions are that all the appellants herein had during the material period had imported coal from various sources and classified the same under CTH 27011920 claiming the same as 'Steam (non-coking) coal' and paid 1% additional duty as leviable under sub-section (1) of Section 3 of CTA 1975 (CVD) claiming benefit under Notification No.12/2012-Cus, dt.17.03.12 (Sr.No.123). The Bills of Entry were assessed provisionally in some cases and in some case cases finally and Customs duty as assessed was discharged by the appellant. Subsequently, on an investigation conducted by DRI and various statements recorded, show cause notices alleging mis-declaration of the product with intent to avail in-eligible benefit of notification were issued to all the appellants. The appellants contested the issue on merit before the lower authorities. The adjudicating authority did not agree with the contentions raised and confirmed the demand, confiscated the goods, imposed penalty and also demanded interest. Ld.Sr.Advocate Shri V. Sridharan started the proceedings by taking us through various documents filed by them like Bills of Entry, invoices, certi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buttress the argument that such classification is uncalled for, he would rely upon the following decisions:- i) M/s Mapsa Tapes Pvt.Ltd Vs CCE Delhi 2009 (247) ELT 188 (Tri-Del) ii) M/s Prashray Overseas (P)Ltd Vs CC Chennai2008 (232) ELT 63 (Tri-Che.) iii) CC (Import) Nhava Sheva Vs M/s Ashima Dyecot Ltd 2011 (267) ELT 122 (Tri-Mum) iv) Aurveda Pharmacy & Another Vs State of Tamil Nadu 1989 (40) ELT 273 (SC) v) State of U.P. Vs Deepak Fertilizers & Petrochemicals Corp. Ltd - (2007) 7 VST 535 (SC) 4. Alternatively, it is his submission that the CVD levied by the Customs authorities on the goods imported by them are also not leviable in view of the fact that coal which has been imported by the appellant is in its natural form and is raised from the ground by mining, are never manufactured nor produced in India. For this proposition, he would rely upon the decision of Apex Court in the case of M/s Tata Iron & Steel Co. Ltd. - 2003 (154) ELT 34 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no data in case of coal imported by the appellant as to quantum of inherent moisture present. It is his submission that in view of this, the adjudicating authoritys order that the goods are bituminous coal is flawed and needs to be set aside. 6. Ld.Counsel Shri A. Sheerazi appearing on behalf of the appellant M/s Adani Enterprises Ltd adopted all the arguments made by other counsels and would bring to our notice that Ministry of Commerce vide Letter F.No.FU-17/2012-IPC, dt.11.02.2013 has specifically informed the Ministry of Finance that the issue which has been raised by the authorities is incorrect as all the coal which is imported as steam coal, almost 70% is used for production of electricity in thermal power stations. He would submit that the appellant has almost deposited some amount of duty which has been confirmed against them. 7. Ld.Counsel Shri Ramesh Nair, appearing on behalf of the M/s Agarwal Fuel Corporation and M/s Agarwal Coal Corporation Pvt.Ltd, would submit that imported coal classified as steam coal as there being a specific tariff entry. It is his submission that by plain reading of the tariff, it is absolutely clear that legislature had recognized nee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department has no basis to classify the goods under Heading No.2701.12 and charge the same to higher rate of duty. 8. Ld.Special Counsel Shri Ramanan appearing on behalf of the Revenue, after giving overall view of the issue involved, would submit that the entire issue has been investigated on the basis of specific intelligence that indicated large scale duty evasion by several major importers of coal by resorting to mis-classification of bituminous coal, classifiable under CTH 27011200 as steam (non-coking) coal under CTH 27011920. It is his submission that the three issues that arise for consideration in all these appeals is whether the sub-heading note No.2 of the Chapter 27 which specifically provide that for the purposes of sub heading 270112, bituminous coal means the coal having volatile matter limit exceeding 14% and calorific value limit equal to or greater than 5833 kcal/kg. It is his submission that the imported coal has to be classified under 6 digit level sub heading whether the coal is anthracite, bituminous or other coal and this is clear from the documents which were submitted at the time of import that the goods which were imported by the appellant answer to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, we find that the issue needs deeper consideration with respect to the classification issue as also the reliance placed by the Revenue on the evidences which support their case. We find that Revenue's entire case is based upon the interpretation of the tariff heading 27011200. Sub-heading Note 2 of Chapter 27 has been interpreted to hold that the goods which are imported by the appellant would fall under category of 'Bituminous Coal' for which the benefit of exemption Notification No.12/2012-Cus, dt.17.03.2012 is not available. We find that when the appellants imported coal, they filed Bills of Entry and various other documents which specifically describe the product as 'Steam Coal'. It is the appellant's case that prior to material period in question and post material period, the appellants have been importing these coals from their suppliers and classifying the same as steam coal. It is also their submission that there is no need for them to mis-declare the goods as Chapter Heading 27011990 more specifically 1927011920 makes the classification of the steam coal. In our considered view, the entire issue is an arguable one and contentious, needs to be gone in detail in as much as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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