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TMI Blog2019 (3) TMI 1525X X X X Extracts X X X X X X X X Extracts X X X X ..... tents. The aforesaid activity resulted in Iron Ore concentrates which the Appellants declared to be Iron Ore concentrates. These processes apparently are not those which are not normal metallurgical operations so as to take the product away from the domain of Chapter 26 and they do not alter any chemical composition. It is pertinent to note that the application made by the Appellants to set up a 100% EOU for export of Iron Ore having Fe contents + 58%. The project report further mentions that the unit would concentrate the Iron Ore - the process undertaken by the Appellants are not those which are not normal to the metallurgical industries - In view of the Chapter notes to Chapter 26 of Custom Tariff Act, 1975, it has to be concluded that Ores includes concentrates. Therefore the benefits of notification 62/2007 is applicable to concentrates also. Having held that the exemption available to Ore is also available to concentrates, the procedural infractions cannot take away benefit when substantial compliance is not disputed and when the Tariff recognizes the description mentioned in the Notification and the description mentioned in the Shipping Bill and Other Documents. Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Commissioner issued a show cause notice dated 16.1.2009 contending that the goods had been declared as iron ore concentrates in the shipping bill another documents and that iron ore concentrate was also mentioned in the quality certificate issued by the Inspection and Quarantine Time of the People s Republic of China and Quality Services and Solutions Private Ltd. The Assistant Commissioner therefore sought to finalise the shipping bill by levying duty of ₹ 300 per metric ton as export duty under the 2nd Schedule to the Customer Tariff Act as against the amount of ₹ 50 per metric ton paid during provisional assessment and demanded an amount of ₹ 1,08,12,500 The departments contention was that the Appellant exported Iron Ore Concentrates having a Fe content of 62% and below, whereas the exemption was Iron Ore Fines having a Fe content of 62% and below. The demand was confirmed and on an appeal filed by the appellants the Commissioner (Appeals) confirmed the demand. Hence, the appeal. 3. The appellants contend that though the product was mentioned as concentrate in the Shipping Bill, the department all along considered the same as iron ore fines as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been submitted include physical, physio-chemical or chemical operations, provided they are normal to the preparation of ores for the extraction of metal. With the exception of changes resulting from calcination is, roasting or firing (with or without agglomeration), such operations must go the chemical composition of the basic compound which furnishes the desired metal. The physical or physio-chemical operations including crushing, grinding, magnetic separation, gravimetric separation, flotation, screening, grading, agglomeration of powders (e.g. by sintering or pelleting) into grains, balls or briquettes (whether or not with the addition of small quantities of binders), drying, calcinations is, roasting to oxidize or magnetic the more etc. (but not roasting for purpose of sulphonating, chloridating etc.) 3.2. They further submit that the terms Concentrate and Ore as per Kirk-Othgmer s Encyclopedia of Chemical Technology, Vol 16, Page 315 is extracted below: Concentrate an action to intensify in strength or purity by the removal of valueless or unneeded constituents, i.e. separation of ore or metal from its containing rock or earth. The concentration of ore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come into existence before and after concentration /beneficiation. In both cases they are different species/types of iron ore . 3.4. They further submitted that in the trade and in commercial parlance especially in Goa iron ore is the genus and concentrates is considered to be the species while iron ore fines and iron ore lumps are considered to be two sub-species of the species iron ore concentrate . These sub-species are decided by the size of the ore, i.e. less than 10 mm size would be fines and more than 10 mm excise would be lumps. In other words iron ore concentrates can be in lump form or in fines form. Iron ore concentrates having a physical size or more than 10 mm are called lumps whilst Iron ore concentrates having a physical size or less than 10 mm are called fines . This is clear from the Public Notice No.14/2008 dated 27 February 2008, issued by the Office of the Commissioner of Customs, Goa. Heading No.11 of the 2nd Schedule to the Customs Tariff Act the covered Iron Ores, all sorts . The iron ore concentrates in lump form as well as in fines form were covered by the aforesaid heading for the purpose of export. As stated above, lumps or fines come into exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of CRCL. They have also not sought to amend the description of the goods in the documents filed by them like the Shipping Bills. We find that the order of Learned Commissioner Appeals is very cryptic and does not discuss various submissions made by the Appellants. 5.1. The trust of the Appellants arguments is that Iron Ore includes Iron Ore Concentrates as it is nothing but enriched and prepared Ore. Ore is genus and concentrate is a species. The Appellants contend that heading No.11 of the second schedule to the Customs Tariff Act, 1975 covers Iron Ores, all sorts and the exemption in terms of Notification No.62/2007- Customs exempts Iron or fines having a Fe contents of 62% and below. Therefore the exemption should be applicable to the Iron Ore whether or not in the concentrate form. The Appellants refer to Chapter Note 2 of Chapter 26 of Customs Tariff Act which defines Ores as 2. For the purposes of headings 2601 to 2617, the term ores means minerals of mineralogical species actually used in the metallurgical industry for the extraction of mercury, of the metals of heading 2844 or other metals of section XIV or XV, even if they are intended for non-metallurgical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants have relied upon the case of Hindustan Gas and Industries Ltd. (Supra). We find that Tribunal following judgment of Hon ble Supreme Court in the case of MMTC (Supra) held that concentrate will be classified as Ores ; while construing the word Ore appearing in the notification No.5/98 will call for coverage of the concentrate. It is clear from the judgment of Supreme Court in MMTC case that Ore is genus and concentrate is species. Therefore a separate mention of Ore and Concentrate in heading 26.03 ipso facto will not imply their different. Therefore, term Ore covered by Notification No.5/98 can apply to concentrate also. We find that the facts of the cases of the Appellants are very much similar. We find that similar view was held by the Tribunal in the case of Electro Ferro Alloys Pvt. Ltd. 5.3. Ongoing through the records of the case we find that the Appellants sister concern is engaged in carrying on the business of Iron Ore mining and export of Iron Ore as such or after processing. This activity generated large quantities of tailing / waste and rejects which have no commercial value due to low Fe contents and thus unviable for both exports and domestic a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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