Home Case Index All Cases Customs Customs + AT Customs - 2019 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (12) TMI 796 - CESTAT BANGALOREClassification of imported goods - cut solar cells - during some cells are damanged - doubt about import of scrap and waste - benefit of N/N. 24/2005-Cus dt. 01/03/2005, 12/2012-CE dt. 17/03/2012 and 21/2012-Cus dt. 17/03/2012 - Absolute confiscation - penalty - HELD THAT:- The order of re-export of the goods on payment of redemption fine within 30 days and if not complied with, the goods will be disposed of as per the statutory provisions, is in excess of jurisdiction conferred by the Statute, because the provisions of the Customs Act do not provide for re-export of the imported goods on payment of redemption fine and therefore the adjudication order was beyond the statutory provisions of the Customs rules. This proposition was considered by the Division Bench of the Tribunal in the case of HBL POWER SYSTEMS LTD. VERSUS CC, VISAKHAPATNAM [2018 (7) TMI 793 - CESTAT HYDERABAD] wherein the Tribunal in identical circumstances has analysed the scope of Section 125 of the Customs Act where it was held that The scope of Section 125 of the Act is limited by the words in which it is framed and it is not open to the adjudicating authority or the Tribunal (who are creatures of the statute) to stretch, modify or restrict the scope of this Section; they are bound by it. Classification of goods - HELD THAT:- It is submitted that, there is no misdeclaration on his part because the right classification for the impugned goods is CTH 85414011 - both the authorities have mis-read and mis-construed the reports submitted by the IISc., CPCB and KSPCB. In fact out of the 3 reports, the crucial and relevant is the report submitted by the KSPCB because their officers visited the spot and after physical verification, they have observed in their report dt. 31/10/2017 that the cut pieces of solar cells of silicon wafers may be used for various solar applications like assembling of solar lantern, solar light etc. As per the settled law, the burden of classification is on the Department and in the present case, the Department has not made any effort to prove the same by any documents except the proceeding to classify the impugned goods as waste and scrap solely considering breakage of some of the imported goods and without considering the nature of usage of the said goods - even in the report of CPCB, the Board has clarified that the scrap of solar cells (broken/small pieces of silicon wafers) does not appear in any of the Schedule of the Hazardous and other Wastes (Management & Transboundary Movement) Rules, 2016. The imported solar cells are precise in nature and therefore there is always likelihood of some damage during the process of transit and the present case, only 70 kgs. has been damaged out of 13599.5 kgs. and even the damaged goods can also be used for various solar applications as per the technical write up produced by the appellant on record. The Customs authorities to release the consignments of the appellant within a period of two weeks - Appeal allowed - decided in favor of appellant.
|