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TMI Blog2023 (3) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... n between those conditions. It is also noticed that the sub-heading note 1 (b) (i) requires the content weight of cobalt to exceed 1.5%. The sub heading note 1 (b) (iii) requires the total content of nickel + cobalt to exceeds 1 %. If the subheading note 1 (b) (i) is held to be a necessary requirement then the sub heading note 1(b) (iii) becomes otiose in so far as if the alloy contains cobalt in excess of 1.5% then it will obviously satisfy the condition of Nickel + cobalt exceeding 1 % . In this background also it is seen that the sub heading note 1(b) (i), 1(b) (ii), 1(b) (iii) need not to be simultaneously satisfied for the purpose of classification of goods as nickel alloy. Nickel predominates in weight being 62.15 to 62.26 % in weight. It is seen that the iron content ranges from 4.56% to 4.59 %, therefore, sub heading note 1 (b) (ii) stands satisfied. Consequently, the goods qualify as nickel alloy in terms of Section note 5 of Section XV read with sub- heading note 1 (b)(ii) of chapter 75 - It is also not disputed by the Revenue that the said product is commercially also known as nickel alloy and not steel. This specific assertion has been made by appellant and the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms, Air Cargo Complex classified the goods under CTH 72189910 as billets of stainless steel on the ground that the content of cobalt didn t exceeds 1.5 %. He also relied on the definition of stainless steel appearing in Chapter 72 of the Customs Tariff Act. The issue was challenged before the Commissioner (Appeals) who vide order dated 12.12.2019 remanded the issue to re-examine the issue in the light of section notes, chapter note, definition of Ferro alloy stainless steel, Nickel alloys etc . The matter was again adjudicated by the Deputy Commissioner and the Deputy Commissioner approved the classification under 75051220. Revenue filed an appeal against the said order before the Commissioner (Appeals) who set aside the order of the Deputy commissioner and classified the goods under CTH 72189910. Aggrieved by the said order of the Commissioner (Appeals) the appellants filed the present appeal. Learned counsel appearing for the appellant pointed out that the CTH 75051220 reads as under : 7505 NICKEL BARS, RODS, PROFILES AND WIRE -Bars , rods and prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have the meanings hereby assigned to them: (a) Nickel, not alloyed Metal containing by weight at least 99% of nickel plus cobalt, provided that: (i)the Cobalt content by weight does not exceed 1.5% and (ii)the content by weight of any other element does not exceed the limit specified in the following table: TABLE- OTHER ELEMENTS Elements Limiting content %by weight Fe Iron 0.5 O Oxygen 0.4 Other elements , each 0.3 (b) Nickel alloys Metallic substances in which nickel predominates by weight over each of the other elements provided that: i. The content by weight of cobalt exceeds 1.5% ii. The content by weight of at least one of the other elements is greater than the limit specified in the foregoing table, or iii. The total content by weight of elements other than nickel plus cobalt exceeds 1 % 2.3 He pointed out that the iron content in the consignment is approximately 4.5 % by weight and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7505 11 -- Of nickel, not alloyed : 7505 11 10 -- Hollows bars kg. 5 % - 7505 11 20 -- other bars; rods and profiles kg. 5% - 7505 11 12 -- Of nickel alloys: 7505 12 10 -- Hollows bars kg. 5% - 7505 12 20 -- other bars; rods and profiles kg. 5% - It appears from the record that the imported goods by the appellant was declared as Nickel billets, which was classified under CTH 75051220. Nickel Billets falls under this tariff entry, regarding which there is no dispute. As per the mill test certificate submitted by the appellant, the imported item was found to be composed of more than 60% of nickel and the rest other alloying elements. 4.1 We find that as per the Note 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the other elements. It seen that in the instant case the weight of nickel is an excess of 60% and therefore there is no doubt that this requirement of Section note 5 of Section XV is fulfilled. 4.4 Now, the issue needs to be decided is if the requirement of sub heading 1 (b)(i), 1 (b) (ii) and 1 (b) (iii) have to be satisfied together or independently. We find that between sub heading note 1 (b) (i) and 1 (b) (ii) there is no mention of and or or . Between sub heading 1 (b) (ii) and 1 (b) (iii) there is specifically mention of word or . Interpreting the above text the revenue has come to the conclusion that to qualify as nickel alloy sub heading note 1 (b)(i) has to be mandatory satisfied along with the conditions specified in sub heading note of 1 (b) (ii) or condition specified in sub-heading note 1 (b)(iii). 4.5 First of all we find that there is no and appearing between sub heading note 1 (b) (i) and 1 (b) (ii) which itself indicates that it is not necessary to satisfy both the condition prescribed in sub heading note 1 (b) (i) and 1 (b) (ii).Learned counsel has rightly pointed that whenever two conditions have to be simultaneously satisfied the legislature has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout the mass; or (b) having a brightness of 60% or more, and 1. a caliper of 225 micrometres (microns) or less, or 2. a caliper of more than 225 micrometres (microns) but not more than 508 micrometres (microns) and an ash content more than 3%;or (c)having brightness of less than 60%, a caliper of 254 micrometres (microns) or less and an ash content more than 8% Heading 4802 does not , however, cover filter paper or paperboard (including tea-bag paper) or felt paper of paper board. From the above it is apparent that whenever legislature intended that two conditions have to be simultaneously satisfied it has specifically mentioned word and between those condition and whenever any one of the two conditions or more conditions are to be satisfed, the legislature has specifically put the word or in between those conditions. 4.6 It is also noticed that the sub-heading note 1 (b) (i) requires the content weight of cobalt to exceed 1.5%. The sub heading note 1 (b) (iii) requires the total content of nickel + cobalt to exceeds 1 %. If the subheading note 1 (b) (i) is held to be a necessary requirement then the sub heading note 1(b) (iii) becomes otiose i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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