TMI Blog1990 (2) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... red CIF value was Rs. 5,60,574/-. Both the consignments were examined and the representative samples were sent for testing to Dy. C.C., Bombay. In the Customs House Laboratory report in Bill of Entry No. 1957/176 the content percent of copper compound was found to be 61.4% and in Bill of Entry No. 2065/111 the percentage of copoer compound was found to be 56.6%. The importers were not satisfied with these reports so they requested again for retest and the samples were sent to CRCL, New Delhi and the Chief Chemist in his letter C. No. 33-Cus/85 dated 11th September, 1985 reported that in case of sample drawn for Bill of Entry No. 1957/176 average of total metal content was found to be 95.83% by weight and in case of sample drawn for goods covered by Bill of Entry No. 2065/111 average of total metal content was found to be 93.52% by weight. It was further reported that in cases of goods covered by both the Bill of Entries although there was presence of a little oxide, on the whole each sample was almost entirely metallic in nature and each contained some scrap pieces and, therefore, the samples did not possess the characteristic of dross and each sample could be considered as Brass W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. He has reiterated the contention made in the appeal. He has pleaded that the appellants had imported Brass Ash/Dross and not Brass Metal/Scrap. He has made a prayer before the Bench for the drawing of the fresh samples as the original samples were not taken properly. Shri Lakshmikumaran, the learned Advocate pleaded that in the present matter classification as well as valuation was involved in the 1st consignment the declared value is US $ 0.40 per pound and the second consignment the value is declared is US $ 0.50 per pound and in the first Bill of Entry the value has been enhanced to 0.50 and in the second consignment the value has been accepted vide Bill of Entry No. 1957/176 dated 12th December, 1984 and the Bill of Entry No. 2065/111 dated 3rd January, 1985. At this stage Shri C.V. Durghayya, the learned JDR raised a preliminary objection that in the appeal memo no valuation plea has been taken. Shri Lakshmikumaran, the learned Advocate has argued that the revenue has assessed the same under Chapter 74.01/72 as Brass Scrap whereas the appellants claim is under Heading 26.02/04 as Brass Dross. He has referred to the paras 2, 3 and 4 of the Statement of Facts. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the true representative samples. Shri Durghayya has referred to appellant s letter dated 19/22-7-1985. He has laid special emphasis on the wording of that letter we request you to please send our goods to Chief Chemist, New Delhi for re-test and to prove the fact that they are Brass Dross . Shri Durghayya has pleaded that the samples were sent on the request of the appellant for re-test. He has also referred to another letter dated 22nd April, 1985. Shri Durghayya, the learned JDR has relied on the report of the Chief Chemist dated 11th September, 1985. He has pleaded that the technical literature does not help the appellant in any way. There is no definition of scrap. He has pleaded that the judgment of the Supreme Court in the case of Swastic Woollen (P) Ltd. reported in 1988 (18) E.C.R. 373 (S.C.) = 1989 (39) E.L.T. 474 (SC) does not help the appellant as the facts are different and trade parlance has been discussed in a different context. Shri Durghayya, the learned JDR has opposed the appellants prayer for taking the fresh sample at this stage and there is no necessity of referring to form any committee and interpretative rule 3 of the Customs Tariff Act is not applicable h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Ash/Dross and in the invoice also the description was given Brass Ash/Dross with minimum metallic content of 85% as per our sales contract No. 182/11/84 dated 3rd November, 1984. We have also gone through the BTN Section V, heading 26.03 of BTN Page 188 of EN/AS20, May 1975. Shri Lakshmikumaran, the learned Advocate had placed heavy reliance on the same. We have to resort to BTN as a guide we have to strictly go to the tariff. There is no definition. Shri Lakshmikumaran s argument that waste is derived from the mechanical working metal of scrap which consists of iron out of broken out metal which excluded the second examination of the goods was done on the request of the appellant vide appellant s letter dated 19/22-7-1985 had requested for the examination. Para 2 from the said letter is reproduced below :- The test report has been already received showing all the properties of Brass Dross and in amplification to the description, Dy. Chief Chemist says that this is Scrap/Waste; since we are not satisfied as the goods having the properties of Brass Dross (with Copper percentage 56.6%) and having different description other than mentioned in the documents. Under the circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - B/E No. 2065/111 Small flat pieces(i) and scrap. (ii) Powdery material. Net weight....... 328.0 gms. 277.0 gms. Copper ....... 56.95 56.02 Zinc ....... 33.12 31.24 Lead ....... 1.47 0.89 Iron ....... 0.77 0.68 Tin silicious matter 3.04 2.55 Total of metal estimated 95.35% 91.38% Combining the portions (i) and (ii) in this case average of total metal content in the sample works out to be 93.52% by weight. Extraneous matter would appear to account for the remainder in each of the portions (i) and (ii) of both the samples. Although there is presence of a little oxide and sulphide impurities and extraneous matter in each case, on the whole each sample is almost entirely metallic in nature and each contains some scrap pieces. Therefore each of the two samples does not possess the characteristics of dross. Each sample can be considered as Brass Waste/Scrap. Sealed remnant samples sumbering two are being returned to you separately by RPP." A simple perusal of the same shows that the content of the metal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. The goods were imported in December, 1984 and January, 1985. Now it is 1989. The appellant must have suffered a lot. The revenue while imposing fine and penalty has not given any basis as to the levy of the same. There is also no calculation of expected margin of profit by the appellants. The Tribunal in the case of Mudeeresware Mining Industries Co., Bangalore v. Collector of Customs, Bangalore - 1989 (39) E.L.T. 630 (Tri.) in appeal No. C/3531/87-A, Order No. 197/88-A dated 9th March, 1988 had reduced the redemption fine from Rs. 50,000/- to Rs. 25,000/- on the ground that the machine on its importation had remained under detention. Keeping in view the facts that the goods are under detention we reduce the fine in lieu of confiscation from Rs. 1,00,000/- to Rs. 50,000/- in respect of Bill of Entry No. 1957/176 and in respect of Bill of Entry No. 2065/111 from Rs. 2,80,000/- to Rs. 1,40,000/-. The Collector had imposed personal penalties in respect of Bill of Entry No. 1957/176 at Rs. 10,000/- and in respect of Bill of Entry No. 2065/111 at Rs. 25,000/-, and we hold that these are not excessive. Except for these modifications made above the appeals are otherwise rejected. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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