HINDALCO INDUSTRIES LTD. Vs. COMMISSIONER OF CUSTOMS
LAWS(CE)-2015-3-9
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on March 12,2015

HINDALCO INDUSTRIES LTD. Appellant
VERSUS
COMMISSIONER OF CUSTOMS Respondents

JUDGEMENT

H.K. Thakur, J. - (1.)THESE appeals have been filed by appellant M/s. Hindalco Industries Ltd. Dahaj, Bharuch, as well as the Revenue against OIA No. 34 to 36/2014 -cus/Commissioner (A)/AHD dated 21.01.2004.
(2.)SH . T. Vishwanathan. (Advocate) and Sh. Manish Jain (Advocate) appeared on behalf of the appellant and also filed written submission Sh. T. Vishwanathan (Advocate) argued that appellant imported copper concentrates failing under CTH 2603 00 00 and claimed the benefit of Notification No. Dated 01/03/2011. That as per this exemption notification an assay certificate from the mining company is required to be furnished for getting deduction of the value of gold & silver content contained in the copper concentrate. That appellant is getting copper concentrate directly from the mining companies as well as through the traders. That the assay certificate available at the time of import from the mining company is provisional. That samples are taken at the time of import for finding final content of gold & silver by the mining company or the trader as the case may be. That the final assay certificate given by the mining company as well as the trader may contain gold & silver content more or less than what was available in the provisional assay certificate. That in the case of Import directly from the mining company the final certificate given by mining company is considered for finalization of value and also the benefit of Notification No. dated 01/03/2011 is extended. That when the import is made through the trader the final certificate given by the trader is not given effect as Notification No. Dated 01/03/2011 talks of only assay certificate given by the mining company. It is thus the case of the appellant that the final assay certificate given by the trader should be taken into consideration while giving value deduction an account of gold & silver. It was also the case of the appellant's advocate that benefit of Notification No. Dated 01/03/2011 can not be denied.
Sh. J. Nagori (AR) appearing on behalf of the Revenue argued that Notification No. Dated 01/03/2011 does not recognize a final assay certificate given by the traders as it talks only of assay certificate given by the mining company. It was his case that department appeal should be allowed as commission (A) was not correct while allowing two options to the appellant while remanding the case to the Adjudicating Authority and that the benefit of Notification No. is not available to the appellant when final assay certificate is issued by any person other than the mining company.

(3.)HEARD both sides and perused the case records. For better appreciation of the issue Notification No. dated 01/03/2011 is reproduced below: - -
"In exercise of the powers conferred by sub -section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts copper concentrates falling under the tariff item 2603 00 00 of the First Schedule to the Customs Tariff Act, 1975(51 of 1975), when imported into India, from so much of the duty of customs as is equivalent to the duty of customs leviable on the value of gold and silver contained in such copper concentrate, subject to the condition that the importer produces to the Assistant Commissioner of Customs or Deputy Commissioner of Customs, as the case may be, an assay certificate from the mining company specifying separately, the value of gold and silver content in such copper concentrate.

Illustration. - If the total value of copper concentrate is Rs. 100 and value of gold and silver in that copper concentrate is Rs. 40, basic customs duty shall be computed on the value of Rs. 60 only. However, the total value of Rs. 100 shall be taken into account, for the purposes of levy of additional duties of customs leviable under section 3 of the Customs Tariff Act, 1975."

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