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TMI Blog2021 (9) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... ive consignment which was seized by CHL, Kandla issued report in questionnaire form an their opinion - Admittedly as per the test report the goods is mainly composed ofCalcium oxide.The other small portion of contents are iron, aluminium and silicious matters which obviously exits in any natural mineral product therefore, it is not established that the slaked lime is not a naturally occurred product but a preparation as contented by the revenue. Therefore, merely on the basis of the test report which is contrary to the opinion cannot be accepted. The quick lime when reacts with water it forms slaked lime and the slaked lime is calcium hydroxide. Accordingly, it is clear that the goods in question is slaked lime under chapter heading 2522. In view of the settled law, irrespective whether the classification claimed by the appellant is correct or not since the classification proposed by the Revenue is absolutely incorrect, the entire case of the Revenue will not sustain - revenue could not establish beyond doubt that the goods in question i.e. slaked lime (Lime Mortar) is classifiable under 38245090. Consequently, the goods are correctively classifiable under Chapter sub headin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner Import and CH, on submission of bond of full value of the goods and revenue deposit of differential duty amount of ₹ 139845/- and accordingly bill of entry no 8924690 dated 15.04.2015 was provisionally assessed. The statement of proprietor of the appellant company was recorded on 25.11.2016 and after analyzing Wikipedia and Harmonized System Notes(HSN) it was contended that the appellant have misclassified the imported Lime Mortar (Slaked Lime) under CTH 25222000 on the ground that the imported goods is processed slaked lime,hence the same is correctly classifiable under CTH 38245090 as the product is notpure calciumoxide but certain other chemicals were added in the processing of the same and further it is preparation based lime. The SCN was issued wherein itwas proposed to change the classification asmentioned above and also proposed for confiscation of the goods, imposition of penalty under section 112(a) and 114 of Customs Act, demand of differential customs duty in ₹ 139845/-and demand of interest under section 28A of customs Act. Demand, Interest and Penalty in respect of Past 11 consignment was also proposed. The Appellant did not file any reply and no o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo Years. 2.2 He further submits that in case of classification dispute the extended period cannot be invoked. The test report in respect of one particular consignment cannot be applied to another consignment. He submits that since there is no misdeclaration or classification of goods the imported goods are not liable for confiscation under section 111(m) of Customs Act. Consequently, penalty is also not imposable undersection 112(a) of the customs Act, 1962. He submits that as per the chapter note 1 of chapter 2522 which covers mineral products only in crude state or washed(even with chemical substances eliminating the impurities without changing the structure of the product), crushed, ground, powdered,levigated, sifted, screened , concentrated by flotation, magnetic separation or other mechanical or physical processes (except crystallization)but not products that have been roasted, calcined obtained by mixing or subjected to processing beyond that mentioned in each heading. He submits that the Slaked Lime(Lime Mortar) is naturally occurred goods and definitely pertains to the chapter heading 25222000 only. Merely reading the chapter note is misleading as the explanatory note t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the imported goods are not preparation as stated by the chemical examiner in his report. 2.4 He submits that as regard the finding in the impugned order that as per the test report the preparation is based on different ingredients may include processes like calcination, hydration, roasting/drying followed by other reactive ingredients . The product is specially designed for application like demolition of rocks, concrete- structure-fracture etc. He submits that the slaked lime has natural property of expansion. Therefore, these are also called as lime mortar in trade parlance. The mortar means some kind of paste (Powder + water) which are poured in the tinybores at the surface of rocks so as to get the crack line therein to obtain the whole block there from. Since the goods have natural property of expansion therefore, it is used for developing cracks in rocks found in mines. The explanatory notes also support the contention of the appellant. He submits that even though the quicklime is obtained by the process of calcinations and then by hydration process, slaked lime is obtained but by the virtue of the Explanatory notes this process does not changethe basicstructure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore, it cannot be relied upon. 2.8 He submits that it is settled law that the test report of current consignment cannot be applied on the previous consignment . He placed reliance on the following judgments: SHALIMAR PAINST LIMITED 2001(134) ELT 285 (Tri- Kolkata) upheld by the Hon ble Supreme Court -2002(145)ELT A242 STELLA INDUSTRIES PVT LTD- 2017(357)ELT 197(Tri- Del) MARKS MARKETING PVT.LTD- 2017(346) ELT 144 (Tri.-Del) A.R TRADING COMPANY -2020(372) ELT 388 (Tri.- Bang) 2.9 He further submits that bill of entry which are finally assessed attained finality where the appeal was not filed. He placed reliance on the following judgments: M/S P G ELECTROPLAST LTD- 2019-TIOL-2241-CESTAT-ALL PRIYA BLUE INDUSTRIES LTD- 2004 (172) ELT 145 (SC) 2.10 In view of his submission he prays for allowing the appeal on merit as well as on imitation. 3. Shri Vinod Lukose, Learned Superintendent (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. He also filed a detailed submission on 26.04.2021 which is taken on record. 4. We have carefully considered the submission made by both the sides and perused the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the water is combined with the quick lime it giving offconsiderable heat and producing slaked lime.This slaked lime is also found entry at the chapter sub heading 25222000. The quick lime and slaked lime are impure calcium oxide in nature and chemically known as calcium hydroxide. 4.2 As per Chapter note 1 of Chapter 2522 which covers mineral product only in crude state or washed(even with chemical substances eliminating the impurities without changing the structure of the product), crushed, ground, powdered, levigated, sifted, screened , concentrated by flotation, magnetic separation or other mechanical or physical processes (except crystallization)but not products that have been roasted, calcined obtained by mixing or subjected to processing beyond that mentioned in each heading.On comparison of chapter note 1 and explanatory note to HSN, it can be said that the quick lime and slaked lime are mineral products. The department s entire reliance is on that the goods has under gone the process of calcining, We find that even though the quick lime is passed through the calcining process but the structure of basic mineral lime has not changed. The addition of water also has the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute that the china clay otherwise is known as Kaolin as well and the process of Kaolin is same as that of china clay. Here the Kaolin is included under Entry 2505.10, i.e., under Chapter Heading 25.05, even when it is calcined. Therefore, it follows from the above that the context here requires such a product to remain included under Chapter 25.05 even when it is calcined. We find that the amended/new provision in the form of Chapter Note 2 as well as Entry 25.05 was made to bring it in tune with HSN Notes which have been produced for our perusal. 11 . Chapter Note 1 of Chapter 25 of HSN Notes, which deals with mineral products is as under : - 1. Except where their context or Note 4 to this Chapter otherwise requires, the headings of this Chapter cover only product which are in the crude state or which have been washed (even with chemical substances eliminating the impurities without changing the structure of the product), crushed, ground, powdered, levigated, sifted, screened, concentrated by flotation, magnetic separation or other mechanical or physical processes (except crystallisation), but not products which have been roasted, calcined, obtained by mixing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose goods are to be classified which are not classifiable in any other heading. In this regard the relevant chapter note 3 to chapter 38 is reproduced below: 3. Heading 3824 includes the following goods which are not to be classified in any other heading of this Schedule: (a) cultured crystals (other than optical elements) weighing not less than 2.5 g each, of magnesium oxide or of the halides of the alkali or alkaline-earth metals; (b) fusel oil; Dippel s oil; (c) ink removers put up in packings for retail sale; (d) Stencil correctors, other correcting fluids and correction tapes (other than those of heading 9612); put up in packings for retail sale; and: (e) ceramic firing testers, fusible( for example, seger cones). It can be seen from the above that the goods slaked lime shall not cover in the above goods. 4.5 In the present case the slaked lime has a clear tariff entry under the sub heading 25222000 therefore by any stretch of imagination the said goods cannot be classified under chapter sub heading 38245090. For ease of reference we reproduce the tariff entry of chapter 3824 as under: PREPARED BINDERS FOR FOUNDRY MOULDS OR CORES; C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dismissed the appeal of the Excise Authorities making it clear that it was open to the Excise Authorities to issue a fresh show cause notice to the appellant on the basis that the tablets were classifiable under Heading 17.04 as items of confectionary. This would have given the appellant the opportunity to place on record such material as was available to it to establish the contrary. It is impermissible for the Tribunal to consider a case that is laid for the first time in appeal because the stage for setting out the factual matrix is before authorities below. In view of the above settled law, irrespective whether the classification claimed by the appellant is correct or not since the classification proposed by the Revenue is absolutely incorrect, the entire case of the Revenue will not sustain. 4.6 As per above our view, we hold that revenue could not establish beyond doubt that the goods in question i.e. slaked lime (Lime Mortar) is classifiable under 38245090. Consequently, the goods are correctively classifiable under Chapter sub heading 25222000. 4.7 Without prejudice of our abovefinding we also find that the test report in respect of the goods imported under bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal goods as have been attempted to have been exported in two shipping bills. On the above statement, Customs authorities have concluded that goods exported in the past also were made of alcohol content more than 70%. From the record, we also note that no sample of the goods covered by earlier consignments have been drawn by the Customs Authorities. Further, there is no reference to any test reports of such earlier samples. MARKS MARKETING PVT.LTD- 2017(346) ELT 144 (Tri.-Del) 9 . We find no merit in the above statement of the Revenue. Admittedly, the change in the classification of the present import of fabrics is based upon the test result by the chemical examiner whereas it is not disputed that no such test results were carried out in respect of previous imports. The law on the issue is well settled. The test reports of the samples drawn from a particular consignment cannot be applied to the previous consignments. Merely because the deponent of the statement has agreed before the Customs that the previous consignment may be of the same composition, by itself does not establish that the previous consignments were admittedly of the same composition. The expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to 5-2-2006 is of no help to the case. For quantification of the duty for the normal period, the case needs to be remitted to the original authority. 4.8 In view of the above settled legal position the test of one particular consignment cannot be used to override the test conducted in respect of past consignments for deciding theclassification in respect of previous consignment test report of the same was not under dispute. Therefore, for this reason also the demand of duty amount, consequential penalty in respect of previous consignment is not sustainable on this ground also. 4.9 Further we find that as regard the demand in respect of 11 earlier consignments the appellant has declared the goods as per the document such as Bill of lading, Commercial invoices from the supplier party etc. The goods wastested and then the Bill of Entry were assessed finally. Therefore, in filing the Bills of Entry there is no suppression or misdeclaration on part of the appellant. Hence, the extended period could not have been invoked in respect of 11 consignments therefore, the demand of duty in respect of goods imported under said 11 consignments is clearly hit by limitation also. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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