Customs, Excise and Gold Tribunal - Delhi
M/S. C.L. Gupta & Sons vs Cc, New Delhi on 8 November, 2000
Equivalent citations: 2001(132)ELT776(TRI-DEL)
ORDER
P.G. Chacko:
1. The appellants had imported Brass Dross from Netherlands and filed Bill of Entry dated 4.2.87 for clearing the goods at concessional duty in terms of Notification No. 493/86-Cus dated 22.12.86. They had described the goods as Brass Dross and classified it under Sub-Heading No. 2620.30 of the Customs Tariff (import) Schedule. The jurisdictional Assistant Collector assessed the Bill of Entry for duty without allowing the benefit of the Notification. The party challenged the A.C's decision before the Collector (Appeals) but did not succeed. Therefore, they approached the Tribunal and the Tribunal remanded the matter to the Assistant Collector for fresh adjudication. The order passed by the Assistant Collector pursuant to the remand order also went against the party, who, therefore, preferred appeal to the Collector (Appeals). The Collector (Appeals) upheld the order of the Assistant Collector. Hence the present appeal of the assessee before the Tribunal.
2. The Tribunal had, by order dated 29.5.97, rejected the appeal. But that order was set aside by the Hon'ble Supreme Court in the assessee's appeal. The apex Court directed the Tribunal to decide the mater afresh after hearing and due application of mind to the contentions of the sides.
3. We have carefully examined the records and heard both sides.
4. Ld. Advocates, Sh. J.S. Agarwal, reiterates the grounds of the appeal and submitted that the question for consideration was whether the imported goods. viz. Brass Dross was the same as Copper Dross or not. He contemned that Brass Dross was different from Copper Dross. Brass was an alloy of Copper and zinc and hence different from Copper. It was Copper Dross, and not Brass Dross, which was excluded from the benefit of the above notification. The foreign supplier also described the goods as Bras Dross. As per the certificate issued by the foreign supplier, as sample of the goods contained only 74.49% of Copper and, therefore, the goods could not be considered as Copper Dross. Ld. Advocate submitted that the benefit of concessional duty was available to Brass Dross in terms of Sl. No. 6 of the Table annexed to the Notification. He, therefore, prayed for allowing the appeal.
5. Ld. SDR, Sh. M.D. Singh, on the other hand, submitted that the foreign supplier's certificate, which proved the report of chemical analysis of a sample of the goods, showed that the copper content was 74.49%. This predominance of copper provided the essential character of the goods. Ld. DR also referred to Notes 3 (a) and 4 of Section XV of the Tariff Schedule and relied on the apex Court's decision in Khandelwal Metal & Engineering Works vs. Union of India (1985 (20) ELT 222 (SC) in support of his plea that Brass dross was not different from Copper dross. The entry at Sl. No. 6 in the Table annexed to the Notification very clearly excluded Copper Dross from the benefit of the notification. Ld. JDR, further, submitted that the question whether Brass Ash was eligible for the benefit of the Notification was answered in the negative by the Tribunal in the case of Sunshine Metal & Alloys Ind. P. Ltd. (1986 (88) ELT 784). He therefore, prayed for rejecting the appeal.
6. We have carefully examined the submissions. We note that the imported goods were described by the appellants as Brass Dross and classified under Customs Tariff Sub Heading 2620.30 The Tariff Heading 26.20 and the Sub-Heading 2620.30, for the relevant period read as under:-
26.20- Ash and residues (other than from the manufacture of iron or steel), containing metals or metallic compounds.
2620.30-Containing mainly copper.
The imported goods were undisputedly classifiable under TSH 2620.30. As per the foreign suppliers certificate, the goods contained 74.49% of copper by weight. Though the certificate described the goods as "Brass Dross", it did not disclose whether Zinc was detected in the test sample and, if so, to what extent in terms of percentage by weight. Brass is an alloy of copper and Zinc, in which coper predominates by weight, as noted by their Lordships of the apex Court in Khandelwal case (supra). Therefore the supplier's certificate produced by the importer would not go beyond the point of establishing that the sample could by classified as "ash and residues" of TH 26.20 containing mainly copper. In Khandelwal case, the apex Court considered the question whether "Brass scrap" could be classified as "Copper waste and scrap". After examining technical literature as also the Section Notes cited before us by ld. DR, the Court held as under:-
30. We may usefully turn to the Notes to Section XV of the First Schedule (Import Tariff), which is called 'Base Metals and Articles of Base Metal'. Clause (a) of Note 3 provides that an alloy of base metals is to be classified as an alloy of the metal which predominates by weight over each of the other metals. Since brass is an alloy of copper and zinc in which copper predominates by weight, brass has to be classiffied as an alloy of copper. Therefore, 'Copper Waste and Scrap' includes brass scrap. According to Note 4, unless the context otherwise requires, any reference in the First Schedule to a base metal is to be taken to inclued a reference to alloys which, by virtue of Note 3, are to be classified as alloys of that metal. Heading NO. 74.01/02 of the First Schedule refers to copper waste and scrap. Copper is a base metal. Reference to copper in that Heading would include reference to Brass since, by virtue of Note 3,brass has to be classified as an alloy of copper. Therefore, copper waste and scrap' includes 'Brass Scrap'.
7. We observe that the above ratio of the apex Court's decision is applicable with full force to the instant issue as to whether 'Brass dross' imported by the appellants was copper dross or not. As already noted, the predominance of copper in the goods is established by the foreign supplier's certificate as well as by the accepted classification of the item under TSH 2620.30. Therefore, by applying the above ratio, we hold that what was described by the importer was only copper dross, which stood excluded from the coverage of the Notification for concessional duty vide Serial No. 6 of the Table annexed to the Notification. Ld. Advocate's plea that Brass dross is different from Copper dross is not supported by any evidence, nor sustainable on legal basis. On the other hand, ld. DR's submissions based on the apex Court's decision as well as the foreign supplier's certificate have to be accepted.
8. We therefore hold that the orders of the lower authorities are sustainable. Accordingly, the appeal is rejected.
(Operative part of the order has already been pronounced in open Court).