TMI Blog2014 (4) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... /57/2006-DB - Order No. A/10552/2014 - Dated:- 7-4-2014 - Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant : Shri S.J. Vyas, Adv. For the Respondent : Shri Manoj Kutty, A.R. JUDGEMENT Per: H.K. Thakur; 1. This appeal has been filed by the Revenue against OIA No.160/ JMN/2006, dt.25.09.2006 passed by Commissioner (Appeals), Jamnagar. 2. Brief facts of the case are that M/s Lucky Steel Industries Bhavnagar (Respondent in the present appeal) imported 48.57 MT of old and used railway tracks and declared the same as Railway Tracks Scrap (HMS) under the Bill of Entry filed for clearance of the imported goods. On examination, the goods were found to be used steel rails. Opinion from an expert was obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004-2009 (Vol.I). He relied upon the following case laws in support of his argument that CBEC Circular No.08/2006-Cus, dt.17.01.2006 was an acceptable evidence:- i) Madras Steel Re-rollers Association Vs UoI [2007 (217) ELT 167 (Mad.)] ii) UoI Vs Madras Steel Re-rollers association [2012 (278) ELT 584 (S.C.)] 4. Shri S.J. Vyas (Advocate) appearing on behalf of the Respondent argued that classification of the imported goods has been correctly decided by the first appellate authority under CTH 7204 in view of the following case laws recently decided: i) Hinduja Foundaries Ltd Vs CC (Imports) Chennai [2013 (288) ELT 571 (Tri-Che.)] ii) Indo Deusche Trade Links and Uni Interlinks Vs CC (I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 (183) ELT 283) (c) Shiva Ispat Udyog Vs. CC 2010 (254) ELT 297 (Tri-Kol) (ii) There is no change in Tariff descriptions or description in notification which would warrant a change in practice (iii) There had been frequent change of opinion among the authorities and the authorities about classification of the goods whether under 72.04 or 73.02 (iv) Between the two different competing headings 72.04 and 73.02, 72.04 is more appropriate because the goods are more in the nature of scrap and not in the nature of rails 30. The position is that the goods were cut used rails as per the submission of the appellants as seen recorded in the impugned orders. As per examination report the goods were used rails ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arriving at the decision in Hiduja Foundries. The decision of the Apex Court in the case Bhusan Steel and Strips decided classification of the particular type of waste involved in that case, between different heading in chapter 72 and it is not a decision to choose between a heading under headings in chapter 72 and chapter 73. Here it is to be noted Chapter 72 of the Customs Tariff only have headings for waste and scrap and not chapter 73 which covers various articles of iron and steel. The Tribunal had also noted that the Finance Ministry was originally classifying re-rollable scrap under 72.04 as is evident from S. No. 201 of Notification 21/2002-Cus as was issued originally. Originally there was condition for monitoring end use of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money is brought out. Also there is an issue scrap is not a type of goods which can be easily compared. The appellants have also taken objection that the time of import of the comparable goods taken was also different and hence the value adopted for assessment has no legal basis. Revenue argues that the appellants accepted the increased value before clearance and hence they cannot challenge it now. No record showing acceptance of increase in value is brought on record. So we do see merit in the arguments of the appellants and this issue is also decided in favor of the appellants. In this matter we take into account the fact that there is no adequate material to reject the transaction value and follow the decision of the Tribunal in CC Vs. D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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