TMI Blog1999 (6) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... scrap from the manufacture or mechanical working of metals and metal goods definitely not useable as such because of breakage, cutting or ware or other reasons. He has noted that the goods did not satisfy definition of waste and scrap referred to above and therefore, their claim for classification under Heading 7204.29 which relates to waste and scrap of alloy steel other than of stainless steel read with relevant concessional notifications is not sustainable. He therefore, held that the goods falling under 7204 should satisfy the definition of waste and scrap as per Note 6 of Section XV. He has noted that Heading 73.04 relates to tubes, pipes and hallow profiles, seamless, of iron under the residuary category. He also did not find the need to refer the case to chemical examination or for expert opinion to find out whether they are pipes or scrap. He has noted that in International language they may be treated as scrap, as far as the Indian trade conditions are concerned, they may be treated as used pipes and tubes of circular cross section. He has noted that whether the price declared corresponds to the value of scrap in international market is not verifiable at this end, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals). He pointed out that it has been imported for melting. He further pointed out that the authorities have also not raised the valuation and accepted the value of scrap. He referred to the Bill of Lading which describes the item as MS scrap including description in the invoice. He pointed out that the department has not produced any evidence to show that the items are fresh pipes and they can be used as such for the purpose of classification under Chapter Heading 7304.90 which relates to tubes, pipes and hallow profiles, seamless (other than cast iron or stainless steel). He pointed out that the department has not discharged their burden on classification. He pointed out to the judgment of the Bombay High Court in the case of Karendra Kumar Co. v. SD Shahapurkar as reported in 1989 (42) E.L.T. 381 and that of Talwan Bros (P) Ltd. v. C.C. as reported in 1992 (59) E.L.T. 323 wherein identification of the goods by visual examination has not been accepted by the Bombay High Court/Tribunal. He relied upon the judgment rendered in the case of Indian Cables Co. Ltd. v. C.C.E. as reported in 1994 (74) E.L.T. 22 (S.C.) wherein the Apex Court laid down the law pertaining to classificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice that there is admission by the Revenue, on the following points : (a) that the items imported are used and rusted pipes; (b) Appellants imported the goods for melting purpose in their factory in the induction furnace in terms of the concessional rate of duty under Notification 36/96, dated 23-7-1996 (Item Sl. 116) which carries import basic duty of 5%, additional duty CVD of 5%, and special duty of 2% ad valorem. (c) that these are old and used pipes. (d) That in international language they are to be treated as scrap. However, as far as Indian trade conditions are concerned, they will be treated as used pipes and tubes of circular cross section. (e) The Collector (Appeals) has accepted the price of the goods to the value of scrap in international market as can be seen from para 7 of his order. The above are in terms of the order passed by the Collector (Appeals) in paras 4 to 7 of his order. 5. The definition of waste and scrap in terms of Note 6 of Chapter XV of the Customs Tariff Act is as follows : metal waste and scrap from the manufacture or mechanical working of metals and metal goods definitely not usable as such because of breakage, cutting or ware or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of its manufactured price. Further it seems that the goods are not usable as new ones. The goods which have exhausted its use and have rusted and are not usable as new ones cannot be equated. The Revenue having accepted the price as that of scrap cannot for the purpose of classification consider the same to be new ones. Therefore, there is inherent contradiction in the finding itself clearly demonstrating non-application of mind and such findings have to be considered as perverse and not acceptable in the eye of law. The reasons further being is that the onus of classification is on the Revenue. The same has not been discharged to show that the goods are fresh and new material to be used as pipes. The same having been accepted as scrap for international purposes cannot in the absence of evidence of Indian trade parlance and understanding be called as pipes or tubes for classification under Heading 7304. The appellants being the importers, have usage of the items in the induction furnace, are required to be considered as the one of the users having Indian trade understanding. The appellants trade understanding has to be considered as that of Indian trade market and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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