P.R. Chandrasekharan, Member (T) - (1.) THE appeal and stay petition are directed against Order -in -Original No. Commr./Adjn/Cus -05/2014 -15, dated 15 -4 -2014 passed by Commissioner of Customs, Central Excise & Service Tax, Panaji, Goa. Vide the impugned order, the learned adjudicating authority has classified the coal imported by the appellant vide Bills of Entry No. 6490447, dated 9 -4 -2012, 6666023, dated 27 -4 -2012 and 7995221, dated 20 -9 -2012 as "Bituminous Coal" as against the classification claimed by the appellant as "Steam Coal" and has confirmed a duty demand of Rs. 2.89 crore (approximately) along with interest thereon and also imposing fines and penalties on the appellant, M/s. The West Coast Paper Mills Ltd. Aggrieved of the same, the appellant is before us. The learned Counsel for the appellant submits that the appellant had been importing the aforesaid material from Indonesia over a long period of time and the coal is commercially known as "Steam Coal". The classification of Steam Coal has been approved by the department also in the past. As per the Load Port certificate issued in respect of aforesaid bills of entry, Gross Calorific Value (ADB) of the goods under importation are 5616 Kcal/Kg, 5784 Kcal/Kg and 5504 Kcal/Kg. which is less than the limit of 5833 Kcal/Kg required for classification as "Bituminous Coal". The coal imported by the appellant was also tested by the Customs Laboratory at Goa and they also found the gross calorific value (ADB) as 4572.1 Kcal/Kg, 4955.83 Kcal/Kg and 5556.07 Kcal/Kg. Therefore, both load port certificate and Customs own report record the gross calorific values as below 5833 Kcal/Kg and therefore, the allegation in the show cause notice that the Volatile Matter (ADB) exceeds 14% on air dry basis and the gross calorific value exceeds 5833 Kcal/Kg as alleged in the show cause notice is not supported by any certificate and hence, the impugned demands are not sustainable. The learned Counsel fairly submits that the assessments were provisional and therefore, the question of time bar might not arise. Accordingly, it is pleaded that stay be granted.
(2.) THE Additional Commissioner (AR) appearing for the Revenue on the other hand submits that the gross calorific value (GCV) has to be calculated on moist mineral matter free basis and not on air dry basis. In the load port certificate as also in the chemical examiner's report, the gross calorific value has been computed on air dry basis. If the same is calculated on the moist mineral matter free basis, the GCV would exceed 5833 Kcal/Kg as pointed out in the show cause notice and therefore, the coal imported satisfies the definition of "bituminous coal" as defined in the Customs Tariff. Since the assessments were provisional, the question of any time bar would not arise and accordingly, he pleads that the appellant be put to terms. We have carefully considered the submissions made by both the sides. 2.1 As per note No. 2 to Chapter 27 while volatile matter has to be computed on air dry basis, the gross calorific value has to be computed on moist, mineral matter free basis. The ASTM standards prescribe a formula for conversion gross calorific value (ADB) on air dry basis to moist, mineral matter free basis and if that formula is applied, it would appear that the gross calorific value in respect of present three consignments would exceed 5833 Kcal/Kg and the goods appear to merit classification as bituminous coal. However, we notice, that the goods had originated from Indonesia and in terms of Notification No. 46/2011 -Cus, dated 1 -6 -2011 the appellant would be entitled for a concessional rate of duty on bituminous coal and the effective rate of duty would work out to 40% of the normal rate of duty applicable. In the present case, we notice that this notification has been taken into account while finalizing the assessment by the adjudicating authority which is a clear error. Therefore, while confirming the duty demand, the adjudicating authority should have extended the benefit of Notification No. 46/2011 -Cus to the appellant, notwithstanding the fact that the appellant had not made any claim for exemption under the said notification. Since there is an error in the computation of duty demand, we are of the considered view that the matter has to go back to the adjudicating authority for redetermination of duty liability in terms of the provisions of Notification No. 46/2011 -Cus and the matter has to be considered afresh. 2.2 Thus, the appeal is allowed by way of remand. Stay petition also stands disposed of.;