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TMI Blog2024 (11) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... at if the Boron Ore is imported after removing the foreign particles, impurities and other substances, it would not be entitled to the exemption. The presumption of the department that the exemption to Boron Ores under Sr. No. 113 of Notification No. 12/2012-Cus and Sr. No. 130 of Notification No. 50/2017-Cus. is available only if the Boron ores is imported with the foreign particles impurities and other substances contained in it when extracted from the mine and that the exemption is not available if the Boron ore is imported after removing the foreign particles, impurities and other substances by physical processes, is totally baseless and untenable in law. The revenue clearly erred in reading into the Notification additional words and conditions which are absent in the Notification. Entry Natural Boron Ore in the earlier exemption Notification has been replaced by the entry Boron Ores - With effect from 1st March 2005, the exemption is available to all types of Boron Ores and is not restricted or confined to only Natural Boron Ore. Therefore we are of the considered view that the goods imported by the appellant is Boron Ores and clearly eligible for exemption under notifications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and Coating P Ltd, Rajkumar Surana, Raj Borax Pvt Ltd, Girish Mehta, Steadfast Impexp, Organic Industries Pvt Ltd, Narendra J Jakkani Versus Commissioner Of Customs Customs Ahmedabad HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. RAJU Shri J. C. Patel with Shri Rahul Gajera , Advocates appeared for the Appellant Shri Sanjay Kumar , Superintendent ( AR ) appeared for the Respondent ORDER RAMESH NAIR These appeals are filed against respective orders. Being involved common issue, all the appeals are taken up together for disposal. Since the facts and issue involved in all matters are similar, for the sake of convenience, the facts relating to Vishwa Glass and Ceramics Pvt. Ltd. are referred. 1.1 The brief fact of the case is that during August 2015 to November 2020, the importer imported various consignments of Ground Colemanite (B2O3 40%) Natural Boron Ore and claimed classification under CTH 25280090. Tariff heading 2528 covers Natural Borates and Concentrates thereof whether or not calcined. The importer also claimed exemption from basic Customs duty under Sr. No. 113 of Customs Notification No. 12/2012- Cus dtd. 17.03.2012 for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25-Cus/C-40- 4712019-20 dated 08.07.2020 reiterated that the sample is a natural calcium borate (commonly known as Boron Ore) and further stated that the sample under reference has not undergone any process of calcination. 1.3 After recording of Statement dated 2-11-2020 of the said importer s Director, Pradip Kumar Patel, a detail Show Cause Notice dated 28-12-2020 was issued seeking to deny the said exemption and demanding duty by invoking the larger period of limitation under Section 28 (4) of the Customs Act 1962 and proposing confiscation of the goods under Section 111(m) of the said Act and imposition of penalty on the importer and its Director. In adjudication, the Commissioner of Customs, passed Order-in-Original dated 1-11-2021 whereby he denied the benefit of the said exemption and confirmed the demand of differential duty with interest. Further he held the goods to be liable to confiscation under Section 111(m) of the Customs Act, 1962 and imposed redemption fine. He imposed penalty equal to duty under Section 114A of the said Act and also a penalty under Section 117 of the said Act. Being aggrieved, appellant filed appeal before the Tribunal and vide final order dtd. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification have to be interpreted as commonly understood by persons dealing with the same. CRCL, New Delhi, which is an expert testing authority, has on test reported that the goods are Boron Ore as commonly known. Therefore, the goods cannot be denied the benefit of exemption given by the Notification to Boron Ore . 2.3 He further submits that question whether goods are classifiable under CTSH 25280090 or CTSH 25280030 is irrelevant for the purpose of exemption Notification. There is no dispute regarding the fact that the goods are classifiable under Heading 2528. Since the Sr. Nos. 113 and 130 of Notifications Nos.12/2012 and 50/2017 respectively, refer only to Heading 2528, it follows that for the purpose of claiming the exemption under the said Sr. Nos. 113 and 130, it is entirely irrelevant whether the goods fall under Sub-Heading 25280090 or Sub-heading 25280030. Therefore, the contention in the Show Cause Notice and the finding of the Commissioner that the said goods are correctly classifiable under Sub-heading 25280030 is irrelevant and has absolutely no bearing on the eligibility to exemption. 2.4 He also submits that the Show Cause Notice and Order-in-Original have procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at while the Notifications prior to 1st March 2005, viz. Notification No.23/98-Cus (Sr. No.20), Notification No.20/99-Cus (Sr. No.22), Notification No.16/200-Cus (Sr. No.50), Notification No.17/2001-Cus (Sr. No.54) and Notification No.21/2000-Cus (Sr. No.57), all used the expression Natural Boron Ore , with effect from 1st March 2005, by amending Notification No.11/2005-CUS, the expression Natural Boron Ore was replaced by the expression Boron Ores . The word Natural which qualified Boron Ore in the notifications in force prior to 1st March 2005 was consciously dropped by the amending Notification 11/2005-Cus and subsequent Notifications Nos. 12/2012-Cus and 50/2017-Cus and the singular Ore was made into plural Ores . With effect from 1st March 2005, the exemption is available to all types of Boron Ores and is not restricted or confined to only Natural Boron Ore i.e ore in the condition in which it is mined. The contention in Para 16.3 of the Show Cause notice that the exemption is available only to Natural Boron Ore, is clearly erroneous in view of the dropping of the word Natural from the Notifications with effect from 1st March 2005. The contention that the goods should not be C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 32% and the Colemanite ore is made usable and valuable by EtiMaden by using various mining methods which enriched by physical processes and converted into concentrated boron products. It is contended that by processes of enrichment grinding in hi-tech concentrator facilites the mined Colemanite ore having B2O3 ranging between 27%-32% is enhanced to 40%. However, by Certificate dated 15th February 2021, EtiMaden have clarified that the B2O3 content of their natural borates are not updated frequently on their website since it changes with the nature of the ore vein operated. They have further clarified that the boron lumps have B2O3 content ranging from 38-42% and these are simply powdered and no chemical treatment is done. They have further clarified that the Boric Oxide content differs in every ore vein and that they give specification and certificate of analysis in respect of each shipment. Therefore the contention raised in the show cause notice based on website of EtiMaden which was not updated are untenable. 2.9 He also argued that, in any event, the Show Cause Notice is partly barred by time, having been served after the expiry of the limitation period of two years specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted above, issue of eligibility to exemption notification or classification of goods under one heading or another is an issue of law and not a statement of fact.There is absolutely no mis-statement or suppression of any fact, much less any willful mis-statement or suppression of any fact. A number of Bills of Entry were assessed by the proper officer of customs and were not system assessed. As evident from the Examination Order in respect of such Bills of Entry, one of the Mandatory Compliance Requirements Examination Instructions was to VERIFY THAT THE GOODS ARE BORON ORES for the purpose of exemption under Sr. 113 of Customs Notification No. 12/2012-Cus dated 17.03.2012 and under Sr. 130 of Customs Notification No. 50/2017 dated 30.06.2017. It is therefore clear that the issue whether the goods are Boron Ores or not was specifically examined in the case of number of Bills of Entry and the exemption benefit was extended by the proper officer of customs after such verification/ examination. Accordingly, it cannot be said that there was any willful mis-statement or suppression of facts on our part. When the proper officer of customs has in a number of Bills of entry extended the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain relied upon the Wikipedia and websites for the definition of ore. We fully agree with the arguments of Ld. counsel that since the matter was remanded by the tribunal, the Ld. Commissioner is required to follow the finding and directions in the order of the higher authority and Adjudicating authority cannot go contrary to the finding and directions of the appellate authority, particularly when this Tribunal s order has been accepted by the department as no appeal has been filed against the said tribunal s order. 4.1 On merit of the matter we find that the report of CRCL, New Delhi relied upon in present matter itself clearly established that the imported goods are Boron Ore . In this regard it is relevant to see the Report of CRCL, New Delhi the copy of which is scanned and reproduced below : - 4.2 We find that the Sr. No. 113 of Notification No. 12/2012-Cus. and Sr. No. 130 of Notification No. 50/2017-Cus., both granted exemption from basic customs duty to Boron Ores falling under Customs Tariff heading 2528. The relevant entries of above notifications are reproduced as under : S. No. Chapter or Heading or Sub- heading or tariff item Description of goods Standard rate Addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption notification on the erroneous ground that exemption under Sr. No. 113 of Notification No. 12/2012-Cus. and Sr. No. 130 of Notification No. 50/2017 Cus is confined and restricted only to Natural Ore i.e naturally occurring raw and native mineral as obtained from the mine and containing various foreign material, impurities and other substance. The Ld. Adjudicating authority held that since the goods imported by the appellant have been subjected to physical process of removing the foreign material, impurities and other substances to physical processes of removing the foreign material, impurities and other substances, the same are concentrated ore and therefore not covered by the said Sr. Nos. 113 and 130. However we find that on bare perusal of the said Sr. No. 113 and 130 of Notification No. 12/2012-Cus and 50/2017-Cus respectively, would show that they cover Boron Ores without any qualification or restriction. Once the CRCL, New Delhi has on test reported that the goods are Boron ore as commonly known, the benefit of the said Notification cannot be denied on the ground that the said Boron Ore is not in its natural state a mined, but has been subjected to the physical process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, it is settled law that claiming of a particular classification or notification is matter of belief on the part of the importer and the claiming of a particular classification or exemption notification does not amount to mis-declaration or willful mis-statement or suppression of fact. Issue of eligibility to exemption notification or classification of goods under one heading or another is an issue of law and not a statement of fact. We also find that number of bills of entry were assessed by the proper officer of customs after examination of the goods. The issue whether the goods are Boron ores or not was specifically examined by the officers in the case of number of Bills of Entry and the exemption benefit was extended by the officers after such verification/examination. Accordingly, in our view it cannot be said that there was any willful mis-statement or suppression of fact on appellant s part. The larger period of limitation cannot be applied merely because the department subsequently entrains a different view on the scope of the Notification. Keeping in view the overall facts and circumstances of the case, we do not consider that the ingredients of Section 28 are satisfie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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