Home Case Index All Cases Customs Customs + AT Customs - 2019 (10) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (10) TMI 113 - AT - CustomsMisdeclaration and undervaluation of imported goods - consignments of Zinc Ash, Zinc dross, Zinc scrap and Aluminum scrap of different grades - Allowability of discount on LME Prices - denial of request for cross examination of chemical examiner - HELD THAT:- When the goods on importation were found to be zinc ash and permitted to be cleared after testing and also that the chemical examination report of goods seized from factory is inconclusive, the goods would merit classification as Zinc Ash only. Even though there is communication from the Indian Consulate or the emails between the indentor and supplier, but in the light of the fact that the goods were found to be Zinc Ash during imports, we are inclined to hold that the charges of mis-declaration are not sustainable and hence no duty demand can be made. There is no evidence found at the end of the Appellant and the documents relied upon to support the allegation were of third party. Hence in such circumstances, the charges of misdeclaration and undervaluation does not sustain. Allowability of discount on LME Prices - HELD THAT:- Applying the LME price minus discount band as per SMRI bulletin or DGIV Circular No. 14/2005 dt. 16.12.2005 is absolutely wrong. The Appellant has also relied upon the letter F. No. S/26 – Misc-1040/2005 GrIV dt. 13.02.2006 of the Commissioner of Customs, Nhava Sheva wherein the Commissioner in reference to Valuation of Aluminium Scrap under Alert Circular No. 14/2005 issued under F. No. VAL/TECH/37/2005 dt. 16.12.2005 has stated that there is no linear correlation between the prices of Aluminium Metal and prices of Aluminium Scrap quoted in Metal Bulletin. It is also clear from the communication dated 29.10.2008 of the Institute of Scrap Re-cycling Industries, INC (ISRI) that the scrap price would depend on many factors and the LME based price cannot be applied blindly to imports of scrap for the purpose of valuation. The whole case is also based upon allegation that the differential amount was paid by the Appellant through Hawala Channels or transfer. However, in the show cause notice not a single person was identified or investigations were made as whom the differential value amount was handed over. Except naming Chaganlal no person has been named. There is no evidence as to how the Appellant came into possession of cash alleged to be differential amount towards scrap import neither there is any evidence of any cash being handed over to any person representing suppliers. In absence of same the allegation of undervaluation cannot be supported. The demands confirmed against M/s SMRI, confiscation of goods and penalties imposed upon M/s SMRI is not sustainable - For the same reason the penalty imposed upon co-appellants namely Shri Sushil Kumar Agarwal, Shri Surendra P. Kachhara and Shri Sanjeev Kumar Agarwal is also not sustainable - Appeal allowed - decided in favor of appellant.
|