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TMI Blog2024 (1) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... eing mere mineral, and accepted by the Customs department for previous period as well as all subsequent imports into India, should be therefore correctly classified under CTH 2510 as claimed by the Appellant and not under CTH 2835. No doubt, any chemically precipitated calcium phosphate, would be classifiable under CTH 2835, however, for that purpose, it would be required to be shown that the end product has traces or characteristics of a product obtained by treating tricalcium phosphate contained in bones first with hydrochloric acid and then sodium hydroxide or by precipitating a solution of trisodium orthophosphate by means of calcium chloride in presence of Ammonia, as also evident as per Explanatory Notes to HSN for Tariff Heading 2835 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent appeal is whether Apatite (Ground) Calcium Phosphate / Natural Calcium Phosphate imported by the Appellant is correctly classifiable under CTH 25102030 as claimed by them or is to be classified under CTH 28352690 as confirmed vide the impugned order. The consequent differential import duties and penalties are imposed against the Appellant Company vide the impugned, apart from imposing various personal penalties on other co-Appellants. 2. Shri. Saurabh Dixit, Learned Counsel appearing on behalf of the Appellant Company and other Noticees, at the outset, submitted that the very same nature of goods imported from the same supplier earlier, were also the subject matter of classification dispute and vide OIA dt. 5.9.11, the goods in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial period have been successfully classified under CTH 2510 only without any dispute by the revenue department. So much so, all subsequent consignments were subjected to provisional assessment, wherein test reports and re-test reports were obtained which are ad-verbatim identical to the retest report in the present case, and all assessments have been successfully classified under CTH 2510 by Customs authorities and such assessment too has been accepted by Customs department. 2.5 It is his submission that the goods were merely heat treated to remove impurities and there was no thermal decomposition which would qualify as calcination. Mere heating a product even if assumed to calcination process, does not mean that product is per se calcin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under CTH 2510 or under CTH 2835 and whether any consequent duty, interest and penal liabilities follow or otherwise. 5.1 Before proceeding further, we find that the contents of Chapter Note 1 to Chapter 25 as well as HSN Explanatory Notes to Chapter 25, 28 and 31 are required to be appreciated in this regard, which are reproduced below: 5.2 While the Appellants have raised various lengthy averments, at the outset, we find that the very same product was the subject matter of classification dispute in the past, wherein vide OIA dt. 5.9.11, it was held as follows: 5.3 We also note that the impugned order as well as the submissions made by the Ld. AR, to the effect that the product literature and material safety data sheet will show that the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the specific averment made by the Appellant in this regard, the test/retest report as well as the contents of cross examination of Shri. V. Suresh JT Director (NFSG), CRCL, New Delhi has nowhere brought on record that there was any thermal decomposition of crystalline structure of the product and hence, the said product was not calcined at all. In light of the above as well as the HSN Explanatory Notes, which are a safe guide to decide Customs classification issues, the goods do not appear to be omitted from the purview of Chapter 25 at all. 5.7 Further, it has come out during the course of cross examination of Shri. V. Suresh JT Director(NFSG), CRCL, New Delhi had specifically accepted that the product was moist in nature when being ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icient persuasive value as rightly argued by the Ld. Counsel for the Appellant. This is also reinforced by the independent technical evidence in form of study report by Lucideon, a world renowned testing facility as argued by the Appellant, which has also unequivocally certified that the supplier s product was natural mineral product and not calcined in absence of any thermal decomposition. 5.11 No doubt, any chemically precipitated calcium phosphate, would be classifiable under CTH 2835, however, for that purpose, it would be required to be shown that the end product has traces or characteristics of a product obtained by treating tricalcium phosphate contained in bones first with hydrochloric acid and then sodium hydroxide or by precipitat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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