VESUVIUS INDIA LTD. Vs. COMMISSIONER OF CUSTOMS, VISAKHAPATNAM

JUDGEMENT

(1.) THE issue in this case is whether the Aluminous Cement imported by the appellant is eligible for exemption under Sl. No. 448A of Notification No. 21/2002 -Cus. or not. According to the Revenue, what was imported by the appellant is not Aluminous Cement but High Alumina Refractory Cement. The exemption under Notification No. 21/2002, according to the Revenue, is eligible only to Aluminous Cement and therefore appellant has mis -declared the product imported by them as Aluminous Cement to avail the benefit of notification. On this ground impugned order has been passed and demand for duty on the imports made by the appellant during the period from 1 -4 -2006 to 4 -5 -2011 amounting to more than Rs. 1.08 crores has been demanded. Further penalties have imposed under Sections 114A and 114AA of Customs Act, 1962 and redemption fine also has been imposed.

(2.) THE learned advocate submits that appellants have been importing this product even before the Notification No. 21/2002 was issued. He submits that all through they have been declaring the product as Aluminous Cement only whether there was exemption or not. Further he also submits that they were submitting commercial invoices and test report of the manufacturer which would show that cement imported by them had a high content of alumina. He also submits that the product was known by the Trade name and in the trade name the last two numbers correspond to Aluminous content. He also submits that the tariff was amended in 2003 -04 and the High Alumina Refractory Cement came to be classified under 25239020 and the hydraulic cement under 25239000. Prior to that the description was Aluminous Cement under 25233000 and other hydraulic cement under 25239000. He submits that the tariff which was classifying these goods was similar to the tariff all over the world earlier and after the amendment the Indian Tariff has changed. According to him in U.S, U.K. and China, the classification of Aluminous Cement and other hydraulic cement continued to be as they were prior to 2003 -04 and there is no change whatsoever. He submits that all over the world the understanding is that when there is high alumina content in the cement, it is Aluminous Cement and other types of cement come under other hydraulic cements category. According to him Aluminous Cement does not come in the category of other hydraulic cement at all and the only Indian legislature has considered it High Alumina Refractory Cement under the category of other hydraulic cement. Further he also relies on the European Standards to submit that aluminous cement comes under the broad category heading of High Alumina Refractory cement and it is known as refractory cement. He submits that appellants had no intention to mis -declare the goods and they had continued the same practice which was followed by them earlier and continued to claim exemption. He points out that even now exemption Notification No. 21/2002 provides exemption to Aluminous Cement. He submits that during the relevant time when Notification No. 15/2012 superseded Notification 21/2002 -Cus., the Government has not chosen to amend the description for providing the exemption namely Aluminous Cement.

(3.) LEARNED AR would submit that the appellant has clearly mis -declared the Aluminous Cement and Aluminous Cement cannot be considered as High Alumina Refractory Cement. He relies on the reply to Question No. 6 given by one Shri Thumma Antony working as General Manager of the appellant to submit that the Aluminous Cement and High Alumina Refractory Cement are different. Since General Manager stated that High Refractory Cement and Aluminous Cement cannot be considered as Refractory Cement, the appellants clearly misdeclared the description while importing the goods. He also relies upon the declaration filed by the supplier of the appellant M/s. Kerneos application under the Indian Trade Marks Act, 1999. They sought registration under trademark under the category of High Alumina Refractory Cement. He submits that this shows that both the supplier and the buyer understood the product to be High Alumina Refractory cement and therefore there was a clear mis -declaration and the impugned order is sustainable and appellant should be required to make pre -deposit. The learned counsel in his rejoinder submits that the application for trademark made by the supplier does not in anyway mean a declaration for this. According to him the percentage of alumina content was always declared and understanding of the trade is that if the alumina content is between 50 -80% it is high alumina refractory cement only and therefore there was no mis -declaration.