Home Case Index All Cases Customs Customs + AT Customs - 2020 (9) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (9) TMI 952 - AT - CustomsClassification of imported goods - heavy melting scrap - benefit of concessional rate of duty - serial no. 368 in N/N. 50/2017-Cus dated 30th June 2017 - applicability of note no. 7 in Section XV of the First Schedule to Customs Tariff Act, 1975 - Difference of Opinion - matter placed before Hon’ble President for reference. HELD THAT:- In view of difference of opinion as to allowing of appeal, as held by Member (Technical), and remanding the matter for re-test, as held by Member (Judicial) in appeal no C/88315/2019, Registry is directed to place the records before Hon’ble President for reference, under section 129C (5) of Customs Act, 1962, to Third Member for answering the following points: i. In the light of concurrence of finding that the impugned goods are not ‘copper alloy’ in paragraph no.13, and the show cause notice proposing classification in tariff item no. 74040029 below sub-heading for ‘copper alloy’ in chapter 74 of First Schedule to Customs Tariff Act, 1975, whether the decision of Member (Technical) that incorrectness thereof of proposed classification leaves no option but to accept the declared classification against tariff item no. 72044900 in chapter 72 of First Schedule to Customs Tariff Act, 1975 for concluding proceedings OR whether the decision of Member (Judicial) that inappropriateness of the classification proposed in the show cause notice notwithstanding re-test and consideration of other submissions made by noticee is warranted is the correct position in law?; ii. Whether direction for re-testing of fresh samples during adjudication proceedings, that may have the consequence of helping the adjuidcator to arrive at the proper decision of the matter, as decided by Member (Judicial), will have the effect of adding facts to the show cause notice? OR that the resolution of dispute cannot go beyond the facts recorded in the show cause notice, as decided by Member (Technical) reflects the statutory competence, under Customs Act, 1962, of the Tribunal in exercise of authority to remand matter back to the original authority? iii. Whether, on the conclusion in the show cause notice, in the light of recorded declining by all laboratories to re-test the samples, the decision of Member (Technical) that no purpose will be served by insisting on re-test OR the decision of Member (Judicial) that re-test must necessarily be carried out in the laboratories suggested by the appellant or at any other laboratory. is the proper procedure to be adopted? iv. Whether, on the facts available on record, the view of the Member (Technical) that the inability expressed by National Metallurgical Laboratory arises reports lack of capacity to perform test sought by customs officers OR that of Member (Judicial) that it should be presumed that it was declined only owing to non-availability of samples is the appropriate conclusion? v. Whether circular no. 30/2017-Cus dated 18th July 2017, relied upon by the adjudicating authority to accept the first report of National Metallurgical Laboratory, authorizes such option where the second report is inconclusive as held by Member (Judicial) OR recourse to choose between tests only when two complete test reports are available as held by Member (Technical), AND vi. Whether the second test report, referred in paragraph no.13, had given erroneous findings, as held by Member (Judicial), in the context of their clarification furnished on 22nd February 2019 OR Whether the result was not erroneous but inconclusive, as held by Member (Technical), in the context of response and clarifications furnished on the reference made by the department.
|