No need to rely on website & Wikipedia for meaning, when test reports of product by laboratories are available

Pradipkumar P Patel Vs C.C. (CESTAT Ahmedabad)

The CESTAT, Ahmedabad in Pradipkumar P Patel v. C.C. – Ahmedabad [Customs Appeal No. 10047 of 2022 in Final Order No. A/10118-10134/2023 dated January 25, 2023] has set aside the order passed by the Revenue Department denying the exemption from duty of Customs and Integrated Goods and Services Tax (“IGST”) on the import of concentrated ‘Boron Ore’ on the grounds that the same has been obtained after removal of impurities, whereas, only naturally mined products are eligible for such exemption. Held that, the Revenue Department had not properly considered the defence submission made by the assessee and the relevant test reports showing that the imported product is ‘Boron Ore’. Further held that, when the test reports were available on record, there was no need to go to the website and Wikipedia for the meaning of the product. Remanded the matter back for reconsideration in the light of the test reports.

Facts:

Pradipkumar P Patel (“the Appellant”) was in the business of importing Boron Ore and was availing exemption of duty of Customs and additional duty under Sl. No. 113 of Notification No. 12/2012-Customs dated March 17, 2012 for the period April, 2015 to June, 2017 and exemption of duty of Customs and IGST under Sl. No. 130 of Notification No. 50/2017-Customs dated June 30, 2017 for the period after June, 2017 (“the Impugned Notifications”).

However, the Revenue Department (“the Respondent”) denied the exemption to the Appellant and subsequently passed the Order-in-Original dated November 1, 2021 (“the Impugned Order”), on the ground that the Boron Ore imported by the Appellant is not naturally mined Boron Ore as the impurities have been removed from it, therefore, the same is concentrated Boron Ore, which is not eligible for exemption and only naturally mined Boron Ore is eligible for exemption.

Being aggrieved, this appeal has been filed.

The Appellant contended that the test report by two laboratories confirmed that the goods imported is Boron Ore and once it is decided that the goods is Boron Ore, exemption is permissible despite the fact that whether it is concentrated or otherwise.

Issue:

Whether the import of ‘Boron Ore’ by the Appellant is eligible for exemption under the Impugned Notifications?

Held:

The CESTAT, Ahmedabad in Customs Appeal No. 10047 of 2022 in Final Order No. A/10118-10134/2023 held as under:

• Observed that, exemption under the Impugned Notification is provided to goods viz. ‘Boron Ore’ and the test report also shows that the product is ‘Boron Ore’, however, the same is obtained after removal of impurities.
• Opined that, the Respondent has relied upon Wikipedia and Website for the meaning of ‘Ore’. Further stated that, when the test reports were available on record, there was no need to go to the website and Wikipedia for the meaning.
• Noted that, the Respondent had not properly considered various defence submission made by the Appellant and the judgments relied upon by the Appellant.
• Set aside the Impugned Order
• Remanded the matter back to the Respondent for reconsideration, in the light of the test reports and judgments relied upon by the Appellant.

Relevant Provisions:

Sl. No. 113 of Notification No. 12/2012-Customs dated March 17, 2012:

Sl. No. 130 of Notification No. 50/2017-Customs dated June 30, 2017 (effective till February 02, 2021):

FULL TEXT OF THE CESTAT AHMEDABAD ORDER

The issue involved in the present case is that whether the appellants’ import of ‘Boron Ore’ is eligible for exemption under serial no.113 of Customs Notification No.12/2012-Cus dated 17.03.2012 for the period 01.04.2015 to 30.06.2017 and under serial no. 130 of Customs Notification No.50/2017 dated 30.06.2017 for the period after 01.07.2017.

02. Shri J C Patel, learned counsel appeared on behalf of Vishwa Glass & Ceramics Pvt. Ltd. and Shri Pradipkumar Patel. He submits that the lower authorities had denied the exemption on the ground that the Boron Ore imported by the appellant is not naturally mined Boron Ore but the impurities have been removed from the product therefore, the same is concentrated Boron Ore which is not eligible for exemption notification. Only naturally mined Boron Ore is eligible for exemption.

2.1 He submits that the test report by two laboratories confirmed that the goods imported is Boron Ore. Once it is decided that the goods is Boron Ore whether it is concentrated or otherwise, exemption is admissible. He placed reliance on the various following judgments:-

• P.L. Chemicals Ltd v CCE-2006 (197) ELT 324
• Orient Ceramics & Inds Ltd v CC-2008 (226) ELT 483 (SC).
• Tata Tea Ltd v CCE-2004 (164) ELT 315
• Indian Oil Corporation v CCE-1991 (53) ELT 347.
• Kantilal Manilal & Co v CC-2004 (173) ELT 35
• CC v Finesse Creation Inc- 2009 (248) ELT 122 Bom
• Commissioner v Finesse Creation Inc-2010 (255) ELT A120 (SC)
• v Sudarshan Cargo P. Ltd – 2010 (258) ELT 197 (Bom)
• Chinku Exports v CC – 1999 (112) ELT 400
• Commissioner v Chinku Exports- 2005 (184) ELT A36 (SC)
• Shiva Kripa Ispat P. Ltd v CC-2009 (235) ELT 623-Tri-LB
• v Shiva Kripa Ispat P. Ltd -2015 (318) ELT A259 (Bom)
• Natwarlal & Co v CC-2012-TIOL-2171-CESTAT-MUM 15.Kores (India) Ltd. 2019(5) TMI 922.
• Kores (India) Ltd.- 2019 (5) TMI 922

2.2 He also argued that since there is no suppression of fact, extended period could not have been invoked. Other learned advocates Shri A. Banerjee, Shri Vikas Mehta, Shri T. Vishwanathan, Shri Rahul Gajera and Shri Manish Jain, appeared for other appellants who adapted the argument made by Shri J C Patel and reiterates the grounds of Appeals.

03. Shri Dinesh Prithiani, learned Assistant Commissioner (AR) appearing on behalf of the revenue reiterates the finding of the impugned order.

04. We have carefully considered the submissions made by both the sides and perused the records. We find that the exemption under the aforesaid notification is provided to goods viz. ‘Boron Ore’. From the perusal of the finding of the adjudicating authority, the test report of the product shows that the goods is ‘Boron Ore’ however, the same obtained after removal of impurities. The adjudicating authority has relied upon Wikipedia and Website for the meaning of ‘Ore’. In our considered view, when the test reports are available on record, there is no need to go to the website and Wikipedia. Whether the goods will remain as Ore after removal of impurities has been considered in various judgments cited by the appellants. However, the adjudicating authority has not properly considered various defence submission made by the appellants and the judgments relied upon by the appellants.

05. Accordingly, we are of the view that matter needs to be reconsidered in the light of the test reports and judgments relied upon by the appellant. All the issues are kept open. Impugned orders are set aside. Appeals are allowed by way of remand to the adjudicating authority.

(Pronounced in the open court on 25.01.2023)

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