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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 ..... at 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 the interpretation of their heading and has to be considered in its proper perspective. It is the case of the assessee that the coal which has been imported from SAARC/ASEAN countries is eligible for lower rate of Customs duty and CVD. We also note the points raised by the counsel that if the goods are imported, the levy of CVD is incorrect as the coal whether in India or abroad is never manufactured but extracted from the mines. There is a case for re-quantification of duties based on the imports from ASEAN/SAARC nations. In our considered view, all these arguments can be considered at length at the time of final disposal of appeals. In our view, in order to hear and dispose the appeals on merit, all the appellants need to be put to some condition. - Partial stay granted. - C/11637/2014, C/11285/2014, C/11286/2014, C/11439/2014 - Order No. M/13052-13057/2014 - Dated:- 23-6-2014 - MR.M.V. RAVINDRAN AND MR. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e certificate of load port analysis, the investigating authorities have come to conclusion that the coal imported by the appellant would fall under the category of Bituminous coal under CTH 27011200 for which the benefit of exemption under Sr.No.123 of Notification No.12/2012-Cus is not available. After taking us through various technical literatures as annexed in the appeal memoranda, he would submit that the exercise of the Revenue is totally uncalled for in as much as the coal is of 3 varieties anthracite, Bituminous and other coal. It is his submission that metamorphasis or ageing, anthracite and bituminous coal are superior categories and in the bituminous coal, coking coal also arises. After making such a submission, he would draw our attention to the Chapter Heading to Chapter No.27 of the CTA and more specifically to sub-heading Note No.2 and submit that the Revenue is relying upon this note to hold against the appellant. It is his submission that by virtue of this note, Revenue is trying to classify the coal imported by the appellant under Bituminous coal as the load port specification clearly conform to the specifications given in Chapter Note No.2. It is his submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the imported coal was steam coal or not relying on residuary entry. It is his submission that the adjudicating authority proceeded on the ground that the sub heading steam coal was preceded by thereby making classification of other coal which was preceded by which in turn would apply only if the coal did not fall within the ambit of anthracite and bituminous coal. This logic is flawed for the reason: a) The issue is primarily regarding availability of exemption Notification No.12/2012-Cus; entry at of Sr.No.122, 123 and 124 in the said notification make it clear that in fact Sr.No.124 is residuary entry as Sr.No.122 covers the coking coal, Sr.No.123 covers steam coal and 124 covers all goods other than those specified at Sr.No.122 and 123 above. It is his submission that resort to Sr.No.124 can be made only if the goods do not fall under Sr.No.122 or 123 of the said notification. It is his submission that the tariff entry also seem to indicate that the entry steam coal is not residuary entry. It is his submission interpretative rules specifically talks about how the rules are to be applied and do not refer to any residuary entry. It is his submission that when coking co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coal which is imported would be bituminous coal and sub-note No.2 of Chapter 27 is not applicable to steam coal which is imported and declared as such. It is his submission that Chapter Note does not have blanket over-riding effect over the sub-heading and steam coal is nothing but sub-classification of bituminous coal. It is also his submission that the Chapter Note is not relevant for the purpose of claiming exemption under an exemption notification as long as the said notification clearly indicate the description and chapter note of the product of the goods imported. It is also his submission that the object and purpose of exemption Notification No.12/2012-Cus needs to be kept in mind while coming to conclusion whether the goods imported by the appellant are steam coal or bituminous coal and the description in the exemption notification will prevail over the tariff classification, is the law which has been decided by Apex Court in the case of M/s Jain Engineering Co. - 1987 (32) ELT 3 (SC), M/s Johnson Johnson 1997 (92) ELT 23 (SC). It is his further submission that the test of functional use needs to be applied in this case as the coal which has been imported by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specification of bituminous coal need not be gone in detail as there is an evidence in the form of load port report which itself indicate that the goods which were imported were bituminous coal and not steam coal. It is his further submission that for getting the benefit of exemption under notification of Indonesian origin, certificate of origin should have been produced which was not produced at all. It is his further submission that the point which has been raised by the appellant that no test was conducted by the Department to ascertain the gross calorific value is irrelevant as it is not mandatory that all goods presented for assessment should be subjected to chemical test and more so when in the present cases the load port test certificate as produced by the appellant themselves were accepted and the Departments case rests on the specification as per the said certificate. Hence, the decision relied upon in the case of M/s Tamil Nadu Newsprint Papers Ltd (supra) is not applicable. He submitted that as regards the argument of 1% CVD not applicable, he would file written submission in a day. Leave was granted to file the written submissions. 9. We have considered the oral s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporation Ltd is that there is a case for re-quantification of duties based on the imports from ASEAN/SAARC nations. In our considered view, all these arguments can be considered at length at the time of final disposal of appeals. In our view, in order to hear and dispose the appeals on merit, all the appellants need to be put to some condition. 11. In the Stay Petitions in hand, one of the appellant M/s Adani Enterprises Ltd has mentioned before us that they have during investigation deposited an amount of approximately ₹ 7.50 Crores as against the demand of ₹ 11.30 Crores. We consider this deposit enough deposit to hear and dispose their appeal on merits. 12. Since we are of the view that all the appellants should be put some condition for hearing and disposing the appeals on merit, we direct the appellants to make pre-deposit as indicated below: 1. M/s Ultratech Cement Ltd Rs.1 Crore (Rupees One Crore only) 2. M/s Bhatia Global Trading Co. Ltd Rs.25 Lakhs (Rupees Twenty Five Lakhs only) 3. M/s Agarwal Coal Corporation Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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