Page 203 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] MULCHAND M. ZAVERI v. COMMISSIONER OF CUSTOMS, AHMEDABAD 425

the term ‘concentrate’ applies only to ‘ores which have had part or all of the foreign
matter removed………’. Thus only goods derived from ‘ores’ can be called concen-
trate. It is seen that Revenue is seeking classification of the product under Chap-
ter 71 therefore is the correct classification of the product. In any case the goods
do not fall under Chapter Headings 2601 to 2617 even under description of ‘Con-
centrate’.
5. Benefit of Notification. The Heading 2616 90 10 covers both Gold
Ore and Concentrates. Thus it is seen that the tariff distinguishes between Ores
and Concentrates. While the notification grants exemption to ‘Ores’ falling under
Headings 2601 to 2617, it does not grant any exemption to ‘Concentrates’ falling
in the same headings. Thus, to claim the benefit of exemption notification, the
appellants are required to establish that the goods imported by the appellant are
only ‘Ores’. In the instant case, the appellants are claiming benefit of Notification
No. 12/2012-C.E. and the notification exempts ‘Ores’ falling in the specified
headings. Since appellants are claiming the benefit of the notification the onus to
establish that they are entitled to the benefit of the notification is on the appel-
lants. Revenue has placed on record sufficient evidence, discussed in following
paras, to suggest that the goods are not of natural origin and therefore not ‘Ores’.
5.1 The basic question that needs to be answered at the outset is if the
benefit of exemption to ‘ores’ be extended to anything that has been artificially
produced to resemble naturally occurring ‘ores’. In other words, if it is estab-
lished that the goods imported by the appellants were produced in by them in a
workshop, and are not naturally occurring substances extracted from Mines or
sand, can they be called ‘ores’ even if they resemble naturally occurring ‘ores’ in
certain physical/chemical parameters? The answer is no. Only the naturally oc-
curring materials can qualify as ore and artificially produced material cannot
qualify as ores even if they correspond to the physical/chemical parameters of
‘ores’.
5.2 The evidence with the revenue is in the shape of -
(i) Test report of the professor at IIT Mumbai.
(ii) WhatsApp messages recovered from the mobile phone of Shri San-
jay Patel.
(iii) Statements of other persons recorded during investigation.
(iv) Documents recovered from the premises of appellant.
5.3 Investigations have revealed that there were frequent exchange of
messages between the appellant’s partner Shri Sanjay Patel and foreign supplier
Shri Sachin. The printouts of WhatsApp messages were taken under Panchana-
ma from the mobile phone recovered of Shri Sanjay Patel. During investigation,
mobile phone of Shri Sanjay Patel was seized under Panchanama and the
printout of WhatsApp messages exchanged between Shri Sanjay Patel and Shri
Sachin, No. 971-527247299 of M/s. Gstar Jewellers, Dubai, UAE were taken. The
said WhatsApp messages indicated that Shri Sanjay Patel was directing Shri
Sachin to mix gold with various substances and create a product roughly an-
swering to the physical/chemical description of “Ore”. The messages exchanged
during 13 November, 2013 to 14 November, 2014 shows that Shri Sanjay Patel
giving minute by minute instructions to Shri Sachin to prepare fake gold ore con-
centrate. The messages and the implications of the Messages were specifically
admitted by Shri Sanjay Patel. No cross-examination of Shri Sanjay Patel was
EXCISE LAW TIMES  1st May 2020  203