TMI Blog2006 (11) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... were recorded. Evidence was also collected from the steamer agent of the charterers of the vessel. Meanwhile, provisional release of 75% of the goods viz. 4506 MTs of what was declared as non-alloy steel re-rollable scrap was allowed by the Commissioner upon execution of bond and production of bank guarantee by the importer and such clearance was effected under ten ex-bond Bills of Entry declaring the goods as re-rollable scrap under DEEC Scheme. In respect of 138 MTs of hot-rolled coils also, the department did not raise any objection. However, it appeared to the Customs authorities that the remaining 2900 MTs [2000 MTs in the form of plate cuttings and 900 MTs in the form of coils] of what was declared as heavy melting scrap (HMS) were reusable for other purposes without reclaiming the metal and therefore the benefit of Customs Notification No. 11/97 (vide Sl. No. 109 of the Table annexed thereto), applicable to HMS, was not available to the goods. As the importers regretted their inability to segregate the above quantity of scrap into re-rollable scrap and HMS, the Customs authorities availed the services of an expert from the National Metallurgical Laboratory (NML), Chennai. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board s instructions were binding on the Customs authorities, the Tribunal, in the above Final Order, held as under:- In view of the above, we hold that in the facts and circumstances of the case, the appellants are entitled to the benefit of the instructions of the Board. The appellants had taken this plea before the learned lower authority, but no finding in this regard had been given by him as pointed out by the learned lower authority. We, therefore, remand the matter to the learned lower authority for consideration of allowing the benefit in terms of the Board s instructions in the light of the Supreme Court judgment for allowing the appellants to use the material for melting purposes, subject to execution of end-use bond and also subject to the use of the material under supervision of the jurisdictional Central Excise authorities. (vide para 46) (emphasis added) The Supreme Court s judgment referred to is CCE, Patna v. Usha Martin Industries, [1997 (94) E.L.T. 460 (S.C.)] which held that the Board s instructions were binding on the lower authorities. On the importers request for mutilation of the goods, the above final Order held as under:- We observe, the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le? (ii) Whether the end-use certificate produced by the importer is acceptable? Both the questions were answered in the negative. Further, learned Commissioner rejected the request of the importer for mutilation of the goods. Ultimately, he reached the same conclusion in Order-in-Original dated 23-8-2005 as in his predecessor s order dated 31-7-99. Appeal No. C/533/2005 filed by the company and appeal No. C/534/2005 filed by its Managing Director are against this order dated 23-8-2005. 5. Before proceeding further, we must point out that the Tribunal s Final Order dated 12-12-97 was not challenged by the Department and that the party s challenge against it before the High Court did not succeed. The matter mentioned in paragraphs (2) and (4) of the High Court s order being the same thing, the Hon ble Court was particularly endorsing the terms of the Tribunal s remand order contained in para 46 of the Final Order dated 12-12-97. The remand was not for de novo adjudication of the entire case; it was for the limited purpose stated in the Tribunal s order and any of the issues settled in the order was not to be reopened by the lower authority. To be precise, the scope of rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of scrap was akin to mutilation of the goods without Customs permission and supervision and as mutilation of the goods was not permissible for the aforesaid reasons. But we have not been able to find any kinship between mutilation and melting of scrap. This apart, once the entire scrap was melted in furnace as certified by the Central Excise authorities, did any scrap remain to be mutilated? It is not difficult to find that the appellants request for permission to mutilate the scrap had become infructuous with its melting in furnace and therefore what remained to be considered by the Commissioner was whether 2275 MTs of scrap in question could be treated as melting scrap on the strength of the end-use certificate produced by the party, which had certified that the scrap had been melted in furnace under the supervision of Central Excise authorities. In the circumstances, learned Commissioner ought to have accepted the end-use certificate especially where he did not notice any lack of correlation between the above quantity of scrap imported by the appellants and the scrap covered by the end-use certificate produced by them. 7. It is noteworthy that the appellants had consistently ..... X X X X Extracts X X X X X X X X Extracts X X X X
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