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TMI Blog2019 (1) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... 318 of the Notification No. 12/2012-Cus dated 17.03.2012. They were issued show cause notice that the imported goods were produced by M/s Philippine Associated Smelting and Refining Corporation ('PASAR') which is a copper smelter and refinery and is not a mining company or laboratory attached to the mining company. The 'PASAR' owns and operates only copper smelter and refinery in Philippines. The Gold dore produced by PASAR were by-products of their smelter process. The Gold Dore bar were not accompanied along with the packing list issued by the mining company which had produced the same and also the assay certificate issued by the mining company or the laboratory attached to it. The assaying of the gold bars was done by the metallurgical l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued only provisional certificate and not final. The assaying of the gold dore bar has been done by the metallurgical division of PASAR which is not mining company. It is also not established that metallurgical laboratory division of PASAR was a laboratory attached to the mining company namely Glencore. Therefore neither the assay certificate issued by the mining company can be accepted as it is provisional nor the final assay certificate has been issued by a laboratory attached to the mining company. Hence the condition 34 (c) is also not fulfilled. He also held that Glencore is a mining company and PASAR is smelting and refining company. Glencore extracts copper concentrates whereas PASAR sources these copper concentrates from Glencore for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsidiary company of Glencore where more than 51% shares are held by Glencore as it holds 78.2% shares of PASAR. The entire production of PASAR (be it copper or gold) are accounted for are controlled by PASAR and its production is treated as own by Glencore. He has submitted the Annual Report of Glencore in support of his contention. He relies upon the relevant Page 176 of the Annual Report showing PASAR as Principal subsidiary of Glencore. Also that the revenue of PASAR is counted as revenue of M/s Glencore and page 53 and 190 of the Annual report where the production of PASAR is included within the total production of Glencore. He submits that thus the packing list issued by Glencore and packing list of Pasar would satisfy the condition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted gold bar were manufactured by Pasar and they did not declare the fact that consignment was loaded at Cebu is also factually incorrect. The provisional certificate issued by Glencore submitted before customs clearly shows that load location is Cebu, Philippines and country of origin is Philippines. Thus it is evident from documents submitted before customs that goods are loaded from Cebu, Philippines and there is no dispute that the goods were loaded from Philippines. Hence the reasons given by the adjudicating authority for confiscation of goods are absolutely erroneous. He also relies upon the Tribunal judgment in case of M/s Hindalco Industries Ltd. vs. CCU, Ahmedabad 2015 (329) ELT 395 (TRI) as upheld by the Apex Court in Com. Vs. Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the undisputed fact is that the PASAR is controlled entity of Glencore which is involved in mining. The copper concentrate is sourced by PASAR from Glencore and used in its refining and smelter plant. It also has sulphuric acid plant and a dore plant which produced alloy of gold and silver. M/s Glencore holds 78.2% of the shareholding of PASAR and the production of PASAR is counted as production of Glencore. It is common for an entity to have its economic activity divided into various subsidiary companies. In the present case it is not in dispute that Glencore after mining of copper concentrate is getting the same refined and smeltered at PASAR which is its own subsidiary. Only for the reason that both the concerns are working under differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f M/s Hindalco Industries Ltd. vs. Commissioner of Customs, Ahmedabad 2015 (329) ELT 395 (TRI) wherein the issue involved was similar in context of Notification No. 24/2011-Cus dated 01.03.2011. The said notification stipulated the condition that the importer had to furnish an assay certificate from the mining company specifying separately, the value of gold and silver content in such copper concentrate. The tribunal accepted the assay certificate from the agency other than mining company. The Order of the Tribunal was affirmed by the Apex Court as mentioned supra. Whereas in the instant case the Appellants are on better footing as the assay certificate was issued by Glencore who is itself a mining company. The assay certificate cannot be d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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