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TMI Blog2022 (11) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... d, these could have been classified under CTH 7118. CTH 7114 covers all goldsmiths silversmiths wares of precious metal and all such things as are mentioned under note 10, whereas CTH 7118 applies to the coins of any metal including precious metals but the coin should be such as shall be issued under Government control for use as legal tender. Though coins of non legal tender are also covered in CTH 7118 but these coins should not be of gold - Keeping in view the entire discussion about Chapter Notes, explanatory notes, the General Rules of Interpretation and the description of respective entries under CTH 7114 and 7118, it becomes clear that gold coins are such articles of gold which are in the form of coin, but being the coins of non legal tender, these cannot be covered under CTH 7018. These being articles of precious metals are therefore held to be covered under CTH 7114. Whether the exemption from payment of Customs duty is available to the appellant with respect to imported gold coins in terms of Notification No. 152/2009-Customs dated 31.12.2009 as amended by Notification No. 66/2016 Cus dated 31.12.2016? - Whether the imported gold coins can be called as the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y vs declared value Bill of Entry 1 C/50174/2021 Raja Co. Overseas Pvt Ltd. 6328 dated 31.07.2019 49/2020 dated 21.09.2020 Rs.82,14,038/- Vs. Rs.7,74,25,181/- 4 BE 2 C/50335/2021 R C Jewellers Pvt Ltd. 11796 dated 17.07.2019 46/2020 dated 17.09.2020 Rs.22,99,891/- Vs. Rs.2,16,78,676/- 3 BE 2524137 2610775 2725472 2. The facts relevant for the adjudication of these appeals are that the appellant had imported gold coins (other than legal tenders) from South Korea. Three Bills of entry were filed by the appellants for the clearance of import of said gold coins classifying them under Customs Tariff Heading (CTH) 7114 1910. Benefit of NIL rate of Basic Customs Duty (BCD) was also claimed in terms of Entry At S. No. 526 of Notification No. 152/2009- Customs dated 31.12.2009 as amended by Notification No. 66/2016 Cus dated 31.12.2016. Three of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard S/Shri Kishore Kunal, Manish Rastogi and Ms Kanak Grover, learned Counsels appearing for the appellant and Shri Nagender Yadav, learned Authorised Representative for the Department. 6. Learned Counsel for appellant submits that the order under challenge has been passed in violation of principles of natural justice and is also beyond the scope of impugned show cause notice. The order is also alleged to be in sheer violation of decision of this Tribunal in the case of Sri Exports vs Commissioner of Customs, Bangalore reported as [2019 (368) ELT 985 (Tri-Bangalore)]. It is further submitted that goods imported herein are gold coins and this Tribunal recently in the case of M/s. Abans Jewels Pvt Ltd. vs Principal Commissioner of Customs, ACC (Imports) New Customs House IGI Airport, New Delhi in Customs Appeal No. 50192 of 2021 decided on 28.03.2022 has again held that classification of gold coins (other than legal tenders) cannot be made under CTH 7118 9000, and the correct classification is under CTH 7114 1910. The decision also has settled that gold coins are freely importable under Foreign Trade Policy. The decision has also fully relied upon Sri Exports (supra) decision. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by Reserve Bank of India. 9. The findings of the above respective issues are as follows: Issue No. 1 For the purpose it is foremost to look into the Customs Tariff Harmonized System of Nomenclature (CTH) for both the entries in question. Tariff Items for CTH 7114 are : Tariff Item Description of goods Unit Rate of Duty 7114 ARTICLES OF GOLDSMITHS OR SILVERSMITHS WARES AND PARTS THEREOF, OF PRECIOUS METAL OR OF METAL CLAD WITH PRECIOUS METAL - Of precious metal, whether or not plated or clad with precious metal : 7114 11 -- Of silver, whether or not plated or clad with precious metal : 7114 11 10 --- Articles Kg 15% 7114 11 20 --- Parts Kg 15% 7114 19 -- Of other precious metal, whether or not plated or clad with precious metal : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging from HSN. The explanatory notes to HSN 7118 are as follows : 71.18 - Coin (+) 7118.10 - Coin (other than gold coin), not being legal tender 7118.90 - Other This heading applies to coins of any metal (including precious metals) of officially prescribed weight and design, issued under government control for use as legal tender. Consignments of individual coins or of sets of coins which are legal tender in the country of issue are classified in this heading even if they are put up for general sale in presentation cases. The heading includes coin which are no longer legal tender but it excludes collectors' pieces (see Explanatory Note to heading 97.05) Coins are made by stamping out blanks from sheet metal; there are then struck with the appropriate dies to produce simultaneously the designs on the two faces. The heading does not cover: (a) Medals even if struck in the same way as coins, these usually fall in heading 71.13, 71.14 or 71.17 or heading 83.06 (see corresponding Explanatory Notes) (b) Coins mounted in brooches, tie-pins or other objects of personal adornment (heading 71.13 or 71.17) (c) Broken, cut or battered coins of a kind usable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to mean as an object, a particular thing specially one i.e. one of several things of a similar type or a thing similarly placed. As per Merriam Webster dictionary article is a thing or a person of a particular and distinctive kind of class. In the light of above discussion, it becomes clear that goods in question, (gold coins) being an object a thing of particular kind, hence are nothing but the articles. 15. In addition to explanatory notes to the Chapter of CTH, there are General Rules of Interpretation which require that classification to be determined first according to the terms of the heading of the tariff schedule and no relevant section or chapter notes are, unless otherwise required, according to the remaining GRIs, taken in their appropriate order, the Rules require that the classification of goods in the sub heading of headings shall be determined according to the terms of those sub headings, not related to sub heading notes. Similarly, the explanatory notes of Chapter although a dispositive or legally binding but provide a commentary on the scope of each heading and are generally indicative of the proper interpretation of heading of chapters or entries. As already di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( ITC (HS) ) of exports and imports. As far as goods imported and classified under CTH 7114 1910 are concerned, in terms of the Schedule I of the ITC (HS), the same were freely importable without any restrictions prior to the issuance of the Notification No. 25/2017 dated 25.08.2017. Vide the said Import Policy, the Articles of gold were allowed to be imported free whereas coins of any metal other than gold, though were freely importable but were subject to RBI regulations, thus Import Policy of 2017 clarifies that since the goods in question were though coins but of gold, no prohibition is at all applicable upon these coins which were merely articles of gold. 17. The department also in its letter dated 14.9.2017 issued by the Commissioner of Customs and addressed to CBEC while referring to in the judgment of M/s. Abans Jewels Pvt. Ltd. (supra) has mentioned that gold coins (other than legal tender) are excluded from CTH 7118 as per the Explanation to HSN Notes and are covered under CTH 7114 and no restrictions / prohibitions exists on Imports of such gold coins till 24.08.2017. Relevant portion of the letter read as 4. In this context, it is stated that gold coins other tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulations under section 58 of the Reserve Bank of India Act, 1934 or section 47 of the foreign Exchange Management Act, 1999. Section 58 of RBI Act requires such Regulations to be issued only by way of Notification. Section 48 of FEMA requires Regulations issued under section 47 FEMA to prior be presented before the parliament. Non of such regulations have been placed by the Department except a reference has been made to a letter issued by the RBI dated 13.09.2017 or the DGFT Memorandum. None of these documents can be called as Regulations issued by RBI under any of the discussed provisions. Otherwise also bar of RBI to issue directions under section 11 of Foreign Exchange Management Act extends only to authorized person with regard to making payment for foreign exchange or foreign security and RBI cannot regulate imports which are in the exclusive domain of DGFT. 20. The issue of prohibition has also been dealt with by this Tribunal in M/s. Abans Jewels (supra) case. We do not find any reason to differ from those findings which have been already followed in the case of M/s. Credence Cmmodities Exports vs Principal Commissioner of Customs, ACC (Imports) in Customs Appeal No. 5046 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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