By TIOL News Service

MUMBAI, MAR 14, 2017 : THE facts are that the appellant imported a consignment of wires of nickel alloy and claimed the benefit of partial exemption from duty in excess of 5% as envisaged under serial No.438 of Notification No. 21/2002-Cus. The adjudicating authority denied the said benefit of partial exemption on the ground that the said serial No. 438 covered articles of nickel while the wires imported by the appellant were articles of nickel alloy .

As this order was upheld by the Commissioner(A), the appellant is before the CESTAT.

It is submitted that the relevant entry only adverts to the articles falling under Chapter 75 of "nickel and articles of nickel"; that Note 6 of Section XV of the Customs Tariff reads -

The Bench extracted the exemption entry in question and observed -

+ It is undisputed that the appellant had imported a consignment of wires made of nickel alloy. We find from the tariff that Chapter Heading 7505 talks about nickel bars, rods, profiles and wire and Chapter Heading 7505 2200 talks about wires of nickel alloys. Undisputedly, the nickel alloy is an item arising out of nickel and other metals which would mean that presence of nickel is not disputed.

+ It can be seen from the reproduced Section Note that any reference to articles of metal would include reference to articles of alloys of metal. In the absence of any other evidence to show that wires of nickel alloys are not made out of nickel, we hold that the ratio of the decision of the Tribunal in the case of Mukundbhai D. Rathod would apply.

Holding that the impugned order is unsustainable, the Bench set aside the same and allowed the appeal with consequential relief.

(See 2017-TIOL-790-CESTAT-MUM)