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TMI Blog2019 (4) TMI 1703X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the coal in question was imported and used as coking coal and it has a CSN of 4 (according to the load port survey) or 1.5 (according to the CRCL report). At any rate, this cannot be held to be not coking coal. The appellant is entitled to the benefit of Exemption Notification No. 21/2002-Cus, dated 01.03.2002 in respect of the coking coal imported by them - appeal allowed - decided in favor of appellant. - Appeal Nos. C/3069/2011, C/2987/2011 - A/30380-30381/2019 - Dated:- 19-2-2019 - Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) And Mr. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri Jitendra Motwani, Advocate for the appellant assessee. Shri N. Bhanu Kiran, Asst. Commissioner/AR for the Respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were made to this notification and coking coal was covered at Sl.No. 66A, with description as coking coal having swelling index or crucible swelling number of 1 and above and mean reflectance of above 0.60, for use in manufacture of iron or steel using Corex, Finex or PCI technology . Further, changes were made subsequently. As far as the bill of entry in question is concerned, this was filed on 17.06.2010 when there was no definition of coking coal in the notification except that ash content should be below 12%. There were no parameters of CSN or swelling index. 3. It is the case of the Revenue that appellant is not entitled to the benefit of the notification No. 21/2002-Cus, dated 01.03.2002, while it is the case of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surveyors test report (Annexure at page 48 of the appeal) states that the ash content of the coking coal imported vide bill of entry is 8.9%. This report has not been disputed by the department during investigation or in the show cause notice or in the impugned order. The department had sent a sample of the imported coking coal to the Chemical Examiner for testing who reported that the moisture percentage (ARB) as 14.4%, volatile matter (ADB) 30%, Ash (ADB) as 8.1% and CSN as 1.5%. At the end, the Chemical Examiner has reported that coal is other than coking coal. Relying on this test report, the learned Commissioner, in the impugned order denied them the benefit of this exemption notification. In the case of JSW Steel Limited (supra), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t report submitted by CRCL cannot be lightly brushed aside. In the absence of any statutory definition of coking coal in the notification, the report of the Chemical Examiner must be accepted. Therefore, Ld. Commissioner has correctly confirmed the demand, denying the benefit of exemption notification and imposed penalties. The only mistake committed by Ld. Commissioner is that having confiscated the imported goods under section 111 (m) of Customs Act, 1962, he has not imposed any redemption fine upon the appellant under section 125. He had an option of either confiscating the goods absolutely or allowing redemption under section 125 for imposition of redemption fine. There is no provision in the Customs Act under which Ld. Commissioner cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contention is based on the report of CRCL which reported the CSN as 1.5% and ash content of 8% but declared that the imported coal is not coking coal. The reason as to why this coal has been called non-coking coal by CRCL, is not evident from the test report. The CSN of 1 or more can also be considered as coking coal as the subsequent amendments to the notification indicate. In this particular factual matrix, we find that there is overwhelming evidence that the coal in question was imported and used as coking coal and it has a CSN of 4 (according to the load port survey) or 1.5 (according to the CRCL report). At any rate, this cannot be held to be not coking coal. In the case of JSW Steel Limited (supra) it was held in a similar case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods are confiscated, the ownership of the goods rests with the Central Government and the adjudicating authority shall take and possession of the confiscated goods. Therefore the Commissioner in this case had the option to either absolutely confiscate the goods or releasing them on payment of redemption fine. There is no scope of confiscating the goods and not taking possession of the same and releasing them without imposing any redemption fine under section 125. In this case, there is no allegation that the goods are prohibited. The confiscation was only on the ground that the goods in question do not match the description in the bill of entry. Since we have found that the goods which were imported are classifiable as coking coal and a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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