By TIOL News Service

HYDERABAD, SEPT 08, 2017: A total of 41 appeals filed during the year 2014 & 2015 have been disposed of by this common order.

The facts are - The appellants had imported goods declared as Manganese ore falling under CTH 2602 of the CTA and sought exemption from additional duty of customs vide  Notification No.04/2006-CE dt. 01/03/2006 / Circular  No.332/1/2012-TRU  dt. 17/02/2012. All the appellants, along with Bills of Entry filed the relevant documents like certificate / report of the goods from an agency from load port; certificate of analysis at load port by recognised testing laboratories and the invoices of the said goods.

Customs authorities took a view that the goods imported are not 'ore' but 'concentrate' and hence will not be eligible for the said notification.

Differential duty was confirmed and the orders were upheld by Commissioner(A).

All the importers are before the CESTAT.

After going through the point-wise submissions made by both sides, the Bench, at the outset, observed that both the lower authorities had erred in coming to the said conclusion.

Inasmuch as the CESTAT remarked -

++ As against such a declaration made (by importers), on specific query from the Bench, as to whether any samples were drawn by the customs authorities to test the same at CRCL or customs laboratories, both sides categorically stated that no samples were drawn and no analysis was done on the imported goods. In absence of any acceptable evidence that the imported goods were not ore but concentrate, we find that the lower authorities have not shifted the burden of proof on to the appellants.

++ In our view, it is the claim of importers/appellants herein that they have imported ore and it is the case of the Revenue that the imported ore is nothing but concentrate. In order to classify the product under concentrate, it is expected of the Revenue authorities to adduce some evidence that the said products were concentrate; merely relying on the interpretation of HSN explanatory notes will not suffice to shift the burden of proof on to importer appellants. In the absence of any such evidence, we have to hold that the Revenue's case fails.

++ Prior to 01/04/2011, the appellants were importing the same goods from the same sources and declaring them as Manganese ore, wherein the samples were drawn by the lower authorities and the same was sent for analysis to an expert viz. Prof. V.V. Nageswara Rao, Department of Geology, Andhra University, Visakhapatnam. Specimen report of the goods which were analysed by the said Professor for the period prior to 01/04/2011, specifically indicate that the sample is of Manganese ore and not concentrate.

++ Having said so, we find that the Revenue authorities, surprisingly in all these appeals did not draw the samples of Manganese ore which was presented before the lower authorities at the time of import for assessment.

++ We are unable to understand the action of the Revenue in not drawing the sample in order to ascertain whether the goods which were imported are Manganese ore or ore concentrate. In the absence of any corroborative and solid evidence, we hold that Revenue has not been able to discharge the burden of proof that the goods which are imported are nothing but concentrate.

Noting that a similar issue had been decided in the case of Classic Microtech Pvt. Ltd. -   2012-TIOL-1344-CESTAT-AHM  in favour of the importer and the same squarely applied to the cases on hand, the impugned orders were set aside and the appeals were allowed with consequential relief.

(See 2017-TIOL-3254-CESTAT-HYD)