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TMI Blog2024 (4) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... ISSIONER OF CENTRAL EXCISE, HYDERABAD-III VERSUS M/S BHADRADRI MINERALS PVT. LTD. [ 2015 (10) TMI 1836 - CESTAT BANGALORE] and in M/S. JINDAL STAINLESS (HISAR) LTD. VERSUS COMMISSIONER OF CUSTOMS NEW DELHI [ 2020 (8) TMI 743 - CESTAT NEW DELHI] and suffices to set aside the impugned order. It is found that the benchmark of purity, as settled by above decisions, was not attained at the time of import of the impugned goods. Further, the elaborate and detailed discussion in M/S VIRAJ PROFILES LIMITED VERSUS COMMISSIONER OF CUSTOMS (PREVENTIVE) , MUMBAI [ 2023 (10) TMI 1260 - CESTAT MUMBAI] resolves the controversy, once and for all, on heading 2522 of First Schedule to Customs Tariff Act, 1975 being the correct one. The impugned order set aside - appeal allowed. - MR C J MATHEW, MEMBER (TECHNICAL) AND MR AJAY SHARMA, MEMBER (JUDICIAL) Shri C K Chaturvedi, Advocate for the appellant Shri Ram Kumar, Assistant Commissioner (AR) for the respondent ORDER The appellant, M/s Mukand Limited, imported 65 consignments of quicklime between June 2019 and April 2021 from Oman and United Arab Emirates for deployment as flux to remove slag, or impurities, in steel production undertaken by them. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re (HSN) specific to the revised heading, viz., (11) Calcium oxide, hydroxide and peroxide. This heading covers only the oxide (CaO) and the hydroxide (Ca(OH)2), in the pure state (i.e., containing practically no clay, iron oxide, manganese oxide, etc.), Such as the product obtained by calcining precipitated calcium carbonate. The heading also covers fused lime obtained by fusing ordinary quicklime in an electric furnace. This product has a high degree of purity (approximately 98% calcium oxide); it is crystalline and generally colourless. It is used, in particular, for refractory linings for furnaces, in the manufacture of crucibles and for addition to concrete, in small pieces, to increase its resistance to wear. Calcium peroxide (CaO2) is a white or yellowish powder, hydrated usually with 8 H2O), sparingly soluble in water. Used as a bactericide and as a detergent, in medicine and in the preparation of cosmetics. Quicklime (calcium oxide) and slaked lime (calcium hydroxide) are excluded (heading 25.22). leaves no room for further doubt about the classificatory design. Relying on the material test certificate (MTC) , it was further contended that, with total impurities being 0.59 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bactericide and as a detergent, in medicine and in the preparation of cosmetics. Quicklime (calcium oxide) and slaked lime (calcium Hydroxide) are excluded (heading 25.22) . In the instant case, it is not in dispute that what is imported has purity less than 98%. Therefore, the decision squarely applies to the facts of the case. and argued that the computation of purity should be as at the time of presentation for import and not the state it achieves during deployment in production after import, particularly as the impugned goods are designed to act as flux without fusing in the finished goods. Further reliance was placed on the decision [order no. A/87057-87058/2023 dated 20th October 2023] of the Tribunal in Viraj Profiles Limited v. Commissioner of Customs (Preventive), Mumbai another importer similarly situated which held that 9. In the case before us, the contending classification of imported goods discussed in the impugned order are either under 2522 10 00 or 2825 90 90 of the First Schedule to the Customs Tariff Act. Thus, it is clear that at the broader Chapter level itself i.e., Chapter 25 and Chapter 28, there is difference of views among the appellants and the departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cope of coverage of goods under chapter heading 2522 and 2825 are exclusive to each other. 10.3 We find that careful examination of the tariff entries of chapter heading 2522 2825, it reveals that it is not the case that the goods covered under CTH 2522 and CTH 2825 represent contending classification for applying GIR 3 as made out by Revenue. This is for the reason that quick lime cannot be referred to as containing wholly or partly of goods of CTH 2522 and CTH 2825. There is clear exclusion of calcium oxide and hydroxide of CTH 2825 from the scope of CTH 2522, and only separate chemical elements or separate chemically defined compounds are covered under the scope of CTH 2825. 10.4 . In the present case, the facts reveal that the imported goods are quicklime. There is no case of mixture of different material or substance to merit application of GIR 2 or 3. Thus, the Revenue s argument for classification of quick lime under heading 2825 as it occurs last among other classification under heading 2522 is not legally sustainable. xxxxxxxx 12.1 .. Further, as both the appellants and Revenue have relied upon the HS explanatory notes of the World Customs Organization (WCO), for classific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which molecules (or ionic compounds such as salts, or complexes) gets separated or split into other things such as atoms, ions, or radicals, usually in a reversible manner. In simple words, it can be said that the mineral product quicklime when subjected to high temperature calcination becomes calcium oxide by eliminating carbon-dioxide (CO2) and such calcium oxide is not covered under Chapter 25, as these are chemical products classifiable under heading 2825. 13. We also find that our above views is duly supported by the Order of the Tribunal in the case of Collector of Central Excise, Chandigarh Vs. Nuchem Ind. (P) Ltd., reported in 1999 (105) E.L.T. 711 (Tribunal) which has also duly followed the judgement of the Hon ble Supreme Court in the case same assessee. The relevant paragraph of the above order is extracted below: 26. The present case concerns the same assessee and the same material for a later period. The Tariff Headings and the Chapter Note in question being materially the same, the law laid down by the Supreme Court is finding on the Tribunal and the authorities. If, however, it is the stand of the department that the exclusion of roasted or calcined items, in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the samples of imported goods and its report dated 18.04.2018 indicate that the description of the goods as white lumps of irregular shapes sizes along with waste powder. It is mainly composed of calcium oxide (quick lime) along with traces of Iron Silicious matter . On the percentage of chemical composition, the report stated that available lime = 93.8% . Further, one another such chemical testing of imported goods by CRCL in report dated 16.05.2018, indicate that the imported goods contain 92.27% of calcium oxide and 0.96% of magnesium oxide . Further, the HSN explanatory notes in the second para of B(11) also specify that calcium oxide of high degree of purity i.e., app. 98% or more would alone gets covered under the scope of sub-heading 2825. As seen from the test reports, the content of calcium oxide or lime is much less than the requisite 98%. Thus, we are of the considered view that in terms of the HSN explanatory notes, both on account of presence of specified material making it not in pure state and the composition of calcium oxide not upto the requisite 98% making it not a product of high degree, would not enable the imported goods to be classified under sub-heading 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as chosen to denigrate the findings of an appellate authority thus 25.6.2 Similarly, the second case in reference i.e., in the case of M/s. Jindal Stainless (Hisar) Ltd., reliance has been again considerably placed on the case of M/s Bhadradri Minerals P. Ltd. and on the fact that CaO content in the imported goods is in the range of 92-97%, which is again less than 98%, a referral benchmark for classifying Quicklime under CTH 2522 / 2825, which has been arbitrarily fixed in the judgement pronounced in both the above mentioned cases. For better understanding of the case, HSN Explanatory Note 11 under Tariff Heading 28.25 is again produced below for reference: xxxxxx .It is nowhere mentioned in the said Explanatory Notes that only the quicklime having equal to or more than 98% of calcium oxide are to be classified under CTI 2825. This wrong inference of the above mentioned Explanatory Notes in both the cases referred by the notice has led to the judgement which needs to be reviewed. As the judgement of the said case is also based on the mis-interpretation of the Explanatory Notes 11 of the Tariff Heading 2825, the ratio of the case laws cited by the Noticee is not applicable to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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