Custom, Excise & Service Tax Tribunal
Jsw Steel Coated Products Ltd vs Cc (Export) Mumbai on 11 September, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. C/88495, 86933,87757, 88493/14 [Arising out of Order-in- Original Nos. 20/2014/CAC/CC(E)/SJ/GRVI dated 28/2/2014, No. 49/2014/CAC/CC(I)/AB/VB dated 29/4/2014 No. 50/2014/CAC/CC(I)/AB/Oil dted 25/4/2014 passed by the Commissioner of Customs( Import/Export), New Custom House, Mumbai and OIO No. COMMR/ADJ/CUS/03/2014-15 dated 14/3/2014 passed by the Commissioner of Customs, Goa] JSW Steel Coated Products Ltd JSW Steel Ltd JSW Steel Coated Products Ltd : Appellants VS CC (Export) Mumbai CCE, Goa CC (Import), Mumbai : Respondent
Appearance Shri. V.K. Jain, Advocate with Ms. Manya Bhardwaj, Advocate for the Appellants Shri. V.K. Singh, Special Counsel for the Respondent CORAM:
Honble Mr. P.S. Pruthi, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial) Date of hearing: 11/9/2015 Date of decision /2015 ORDER NO.
Per : Ramesh Nair These appeals are listed for regular hearing. However Ld. Counsel for the appellant Shri. V.K. Jain made preliminary submission that the issue involved in the present case is classification of Coal i.e. whether it is Stem Coal or Bituminous Coal. He submits that on the identical issue in the case of Tamil Nadu Generation and Distribution Corporation Ltd. Vs. CC [2014-TIOL-2503-CESTAT-2503-CESTAT-MAD] reference to the Larger Bench was made due to disagreement with view taken by Coordinate Bench of CESTAT in the case of Coastal Energy Pvt Ltd. Vs. CC[2014(310) ELT 97]. It is his submission that though certain questions of law were referred for answer by the Larger Bench in the said judgment, in the present case some more issues also to be decided by the Larger Bench therefore he proposed following question for reference to the Larger Bench:-
(a) Whether the Order of the Tribunal has the effect of obliterating the distinction between a Sub-heading and a Tariff Item while applying the criteria of calorific value limit prescribed in Sub-heading Note(2) to a Tariff Item 2701 12 00 Bituminous Coal, even though the Sub-heading Note begins by stating that the criteria prescribed therein applies only For the purposes of Sub-heading 2701 12?
(b) Whether the Tribunal was correct in holding that Tariff Items 2701 11 00 Anthracite and 2701 12 00 Bituminous Coal are to be regarded as Sub-heading by ignoring 00(and not as tariff-items), thereby treating them as being at the same level and hence comparable with a 6 digit Sub-heading2701 19- other coal, and whether such finding is consistent with the statutory definitions of Sub heading and Tariff Item in the General Rules for the Interpretation of the Customs Tariff?
(c) Whether the Tribunal was correct in accepting the Revenues submissions that in the Customs Tariff, the number of digits and dashes invariably tally and follow a pattern, and consequently whether the existence of against Tariff Items 2701 11 00 Anthracite and 2701 12 00 Bituminous Coal is sufficient basis for regarding the said Tariff Items as Sub-headings by ignoring 00?
(d) Whether the Tribunal was correct in holding that Rules 2 to 5 (in particular Rule 2) of the General Rules for the interpretation of the Customs Tariff apply when the competing entries are in different headings and thereafter would not apply for deciding a case of classification of goods in a Sub-heading, even though the HSN Explanatory Notes clearly provide that all the Rules of interpretation as applicable to Headings would apply mutatis mutandis for the purpose of classification of goods in a Sub-Heading?
(e) Whether the Tribunal was correct in rejecting the importers argument of redundancy of Tariff Item 2701 19 10 coking Coal by holding that some coking coals can be non-agglomerating and can have a GCV of less than 5833 kcal/kg, but not less than 5829 kcal/kg and that the Tariff Item 2701 19 10 coking coal would cover non agglomerating coking coal with GCV between 5829 kcal/kg to 5832 kcal/kg on m,mmf basis?
(f) Whether the Tribunal was correct in reaching its conclusion solely on the basis of a worksheet submitted by the importer wherein GCV of 5709 kcal/kg on moist, ash free (maf) basis was shown as equivalent to GCV of 5829 on moist, mineral matter free(m,mmf) basis, without appreciating that there was no standard or known formula for converting GCV readings on maf basis into GCV readings on m,mmf basis, and also without appreciating that sulphur was the only mineral matter which had been factored in the worksheet, whereas there are several other mineral matters also present in coal, which were required to be eliminated before arriving at the GCV on m, mmf basis?
(g) Whether the Tribunal was correct in treating Sub-heading 2701 19 other coal as residuary covers entry by overlooking the fact that the said Sub-heading specifically covers steam coal and coking coal, which, though, falling under the generic category of Bituminous coal by rank, are actually prepared coals made suitable for use in a particular industry, as distinct from run-of-mine coals which are traded with reference to their generic ranks viz. Anthracite and Bituminous coals?
(h) Whether in the facts and circumstances of the case, the alleged classification of the goods as Bituminous Coal without following the standards prescribed in the Bureau of Indian Standards as to sampling and testing, is legal and proper in view of the judgment of the Honble Supreme Court of India in Tata Chemicals Ltd. Vs. Commissioner of Custom(P), Jamnagar [2015(320) ELT 45]?
2. Shri. V.K. Singh, Ld. Special Counsel appearing on behalf of the Revenue made submission on merit of the questions proposed to be referred to the Larger Bench.
3. We have carefully considered the submissions made by both sides.
4. Since the issue involved is common for various importers all over India, the matter involving many appeals were referred to the Larger Bench in the matter of Tamil Nadu Generation and Distribution Corporation Ltd(supra), we are of the view that, without expressing our view, the matter should be considered by Larger Bench on all the issues raised by both sides. We are therefore of the considered view, it is just and proper in the interest of justice that present matter should also be considered by the Larger Bench. We therefore direct the registry to place these appeals before the Honble President to constitute larger bench to answer the question proposed by the appellants as mentioned above. (Order pronounced in court on _______________) P.S. Pruthi Member (Technical) Ramesh Nair Member (Judicial) sk 5