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TMI Blog2008 (10) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... The clearance of the said goods was sought through their CHA Sri RadhaKrishna Shipping Pvt. Ltd., CHA No. 11/4689 under Advance License No. 0310359987. For clearance of the said goods provisionally, appellants furnished a xerox copy of sales contract dated 15-3-2006 (for 1000 mts. of Blister Copper) between them and the supplier, CARAIBA METAlS S/A, VIA, DO COBRE, 3700, AREA INDUSTRIAL OESTE, COPEC DIEAS D'AVILA, BAHIA, BRAZIL. Appellant through their CHA 11/468 had also submitted copies of provisional Commercial invoice No. 135-06 and 1356-06-A dated 13-03-06 and 18-04-2006 respectively, Bills of Lading and a copy of Advance License No. 0310359987 dated 19-12-2005 valid for the import of Blister Copper. The goods sought to be cleared (were declared to be valued at US $ 47,48,156.85 equivalent to Rs. 21,74,82,202/-) provisionally as the Commercial Invoice furnished by the importer was provisional due to the fact that the price payable was passed on percentage of copper, gold and Silver in the said consignment subject to the final analysis report by the importer. 3. The goods mentioned above were visually inspected by the Officers in presence of CHA and the representative of appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of various persons, including the employees of the appellant company. On completion of the investigation a show cause notice dated 12-7-2006 was issued to the appellants herein directing them to show cause as to why:- A. the above said goods, totally valued at Rs. 27,72,68,266/- imported as Refined copper in the guise of Blister copper by them in violation of Advance License No. 0310359987 dated 19-12-2005 seized by officer of Customs under Panchnama dated 13-6-2006 should not be held liable to confiscate under Section 111(d) and (m) of the Customs Act, 1962 read with provisions of Foreign Trade Policy 1992 and Foreign Trade Regulation Rules, 1993. B. Why the value of the goods declared by the importer as US $ 47,48,156 equivalent to Rs. 21,74,82,202/- should not be rejected under Rule 4 of Customs Valuation (Determination of price of imported goods) Rules, 1988 and re-determined in terms of Rule 6 of the Custom Valuation (Determination for price of imported goods), rules, 1988 read with Section 14(1A) of the Customs Act, 1962. C. Why the duty of Rs. 8,47,51,690/- should not be charged and recovered from the importer, M/s. Sterlite Industries (I) Ltd., under Section 28 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y been released on Bank guarantee and PD Bond, M/s. Sterlite Industries (I) Ltd. is ordered to pay the redemption fine of Rs. 7,00,00,000/- (Rupees Seven Crores only) in lieu of confiscation forthwith. (ii) The value of the impugned goods declared by the importer as US $ 47,48,156, equivalent to as Rs. 21,74,82,202/- is rejected under Rule 4 of Customs Valuation (Determination of price of imported goods) Rules, 1988. the value is redetermined in terms of Rule 6 of the Customs Valuation (Determination of Price of imported goods) Rules 1988 read with Section 14(1A) of Customs Act, 1962 to be Rs. 27,72,68,266/-. (iii) Demand of Customs Duty of Rs. 8,47,51,690/- is confirmed under Section 28 of Customs Act, 1962 and the importer M/s. Sterlite Industries (I) Ltd. is ordered to pay it forthwith, failing which the same shall be recovered by enforcing the PD Bond and the Bank guarantee executed by M/s. Sterlite Industries (I) Ltd. with the Asstt. Commissioner of Customs, Nhava Sheva, at the time of provisional clearance of the goods. (iv) Advance License No. 0310387463 dated 29-6-2006 is rejected for clearance of goods covered by B/E 775929 and 779739 both dated 18-5-2006, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary fire refining and preliminary refined blister copper (liquid form) having copper content of 99.5 to 99.7% is obtained. The same is then cast in as a blister copper anode, which contains 99.5 to 99.7% copper. These anodes are thereafter electrolytically refined and a refined copper cathode which has purity of 99.99% is obtained. In the process of electrolytic refining not all the blister copper anode is refined and some portion of the said blister copper anode cannot be electrolytic refined due to technical reason and is taken back to the anode furnace, this spent blister copper anode is melted and is again cast into a blister copper anode, which is again subject to the process of electrolytic refining. While the aforesaid facility for manufacturing refined copper cathode from copper concentrate is available at Tuticorin. The appellant also has facilities for manufacturing refined copper cathode at Chinchpada, Silvassa. At Chinchpada it however starts from the stage where spent blister copper anode is charged in the anode furnace and melted (preliminary fire refining) and is cast into blister copper anode, which is electrolytically refined to obtain refined copper cathode. App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment was seized. He would assail these findings on the ground that the EXIM policy and the Handbook thereto clearly envisage for procurement of the advance licenses for the consignment under clearance. He would draws our attention to the said provisions. He would also point out that the report of National Metallurgical Laboratory analysed the sample in scientific manner and the results would indicate that the copper content of imported consignment is 99.7% and not 99.9% as claimed by the revenue. 9. Learned Jt. CDR arguing for the revenue would support the impugned order it is submitted that goods imported by the appellant is not blister copper but copper plates and blocks. He would draws our attention to the Metallurgy of blister copper (as downloaded from the net) to submit that blister copper arises due to bubbling of air in melted copper ore, and the resultant product is blister copper which is further purified to form refined copper. He would read that blister copper should essentially have blisters on its surface, while what is imported is spent copper anode plates. It is the submission that blister copper should come from the smelter and not in form of spent copper anode p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vers anodes. II is the submission that chapter heading no. 74.03 will only cover cathodes those are obtained after electrolysis and copper anodes will not be covered under the said chapter heading. It was submitted that clearances were sought provisionally on the basis of proforma-invoice raised by the supplier and the final payment of consignment was done after completion of the analysis and the value paid by the appellant to the supplier is far more than the value as is arrived by the adjudicating authority and the appellant has discharged the duty as per the final bill raised. He would submit that the document relied upon by the Jt CDR would support their case. It is the submission that if a classification is sought to be changed by the revenue, then it was for them to adduce evidence to that effect For this proposition he relied on the decision of the Hon'ble Supreme Court in the case of Hindusthan Ferodo [1997 (89) E.L.T. 16 (S.C.)]. 11. We have considered the submissions made at length by both sides and perused the records. Undisputed facts are that the goods imported and provisionally cleared, are utilized by the appellant in the manufacture of copper cathodes (refined copp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per-tin-base alloys (bronze): --- Phosphor bronze............. --- Other.............................. --- Copper-nickel base alloys (cupro-nickel) or Copper-nickel-zinc base alloys (nickel silver): --- Copper-nickel base alloys (cupro-nickel)............... --- Copper-nickel-zinc base alloys (nickel silver).......... --- Other copper alloys other than master Alloys of heading 7405................ Kg. Kg. Kg. Kg. Kg. Kg. Kg. Kg. Kg. Kg. 12.5% 12.5% 12.5% 12.5% 12.5% 12.5% 12.5% 12.5% 12.5% 12.5% 7404 Copper waste and scrap It can be noticed from the above reproduced chapter heading, that heading number 74.02 covers "refined copper; copper anodes for electrolytic refining" and also covers blister copper. There is no explanation given as to what is blister copper. In the absence of any explanation, the word blister copper has to be understood, as it is known in the trade. Learned Jt CDR has produced a print out from Int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption given in the paper produced by the learned Jt. CDR indicates that the Blister copper can have 99% is copper content, can be in the form of blocks which are generally called as anodes. It is admitted and undisputed in this case that consignments in dispute, in the words of adjudicating authority (at internal Page 22 of the impugned order) "From the description given in the SCN, the impugned goods appear to be spent anodes obtained from electrolytic refining of Copper." This would mean that the goods imported were in anode form and were obtained after electrolytic refining of copper. It is seen from the reproduced chapter headings that the word "anode" specifically finds mention at chapter heading number 74.02. Further in the case before us, it on record and undisputed, that imported consignments in question were first melted and further made into blocks of anodes, further used to make copper cathodes. It is also evident that refined copper is known as cathodes and falls under heading number 74.03. In view of the foregoing reasons we are of the considered view that the consignments, imported by the appellant are classifiable under chapter heading number 74.02. 13. We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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