2006(09)LCX0273

In the Customs, Excise & Service Tax Appellate Tribunal, Chennai

Shri P.G. Chacko, Member (Judicial) and Shri P. Karthikeyan, Member (Technical)

Commissioner of Customs (Airport) Chennai

Versus

IGP Engineers Pvt. Ltd.

Final Order No. 903/2006 and Stay Order No. S/1016/2006 dt. 25.9.2006 certified on 10.10.2006 C/SO/113/2006 in Appeal No. C/202/2006

Advocated By -

Shri Vasa, Seshagiri Rao, SDR for Appellant
Shri Jaikumar, Adv. for Respondent

Per P.G. Chacko:

The application filed by the department (appellant) is for stay of operation of the impugned order. After examining the records and hearing both sides, we are of the view that the appeal itself requires to be disposed of at this stage. Accordingly, after dismissing the stay application, we proceed to deal with the appeal.


2. The respondents had filed a Bill of Entry for clearance of "Nickel Alloy Bars" imported by them, at the concessional rate of duty provided under SI. No. 438 of the Table annexed to Customs Notification No. 21/2002. The original authority denied the benefit of the Notification to the party. The Commissioner (Appeals) allowed the benefit to them. Hence, this appeal of the department.


3. It appears from the records that what was imported by the assessee was hollow bars of nickel alloy, which was classified under CTH 7505 12 10. Hollow bars of nickel alloy fell under this tariff entry, regarding which there is no dispute. Chapter 75 of the First Schedule to the Customs Tariff Act included both 'nickel' and 'alloys of nickel', which is also not in dispute. The above Notification allowed concessional rate of duty in respect of "Nickel and articles of nickel" falling under chapters 75, 85 and 90 vide SI. No. 438 of the Table annexed to the Notification. In chemical test, the imported item was found to be composed of more than 90% of nickel and the rest other alloying elements. As rightly found by learned Commissioner (Appeals), such an alloy of nickel was classifiable as "nickel" itself in terms of Section Note 6 read with Section Note 5 (a) of Section XV of the First Schedule to the Customs Tariff Act. It thus appears that the description "Nickel" used in the Notification could include within its scope 'an alloy of nickel' such as the one imported by the respondents, which, on chemical test, was found to be conforming to the parameters given under Section Note 5 (a) [An alloy of base metal is to be classified as an alloy of the metal which predominates by weight over each of the other metals]. According to Section Note 6, unless the context otherwise requires, any reference in the First Schedule to the Act to nickel (base metal) includes a reference to nickel alloys which, by virtue of Note 5, are to be classified as alloys of that metal. The cumulative effect of Section Notes 5 & & in Section XV of the First Schedule to the Act is that the description of the goods ["Nickel"] used in the above Notification would include 'Nickel Alloys' conforming to the parameters laid down under Section Note 5. In the present case, the goods, admittedly, conforms to the said parameters vide chemical test report. It is also pertinent to note that no specific heading applicable to i, nickel or to its alloys was used in the Notification, against SI. No. 438 ibid. Only %he chapters were mentioned, which included Chapter 75 covering nickel and alloys of that metal. The intent underlying SI. No. 438 ibid was, clearly, to allow concessional rate (5%) of duty in respect of nickel [and its alloys answering the parameters laid down under Section Note 5] and articles thereof, falling under Chapter 75 of the First Schedule to the Customs Tariff Act. The goods imported by the respondents very much fits in this description of goods given at SI. No. 438 of the Table annexed to the above Notification and, therefore, the concessional rate of duty was rightly allowed by learned Commissioner (Appeals).


4. In the result, the impugned order is sustained and this appeal is dismissed.

Dictated and pronounced in open Court.

Equivalent 2007 (078) RLT 0741 (CESTAT-Che.)

Equivalent 2007 (219) ELT 0235 (Tri. - Chennai)