TMI Blog2010 (5) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Respondent acted in a bona fide manner and he is not liable to fine and penalty. A perusal of the case file shows that only those goods which are not usable because of breakage, cutting up wear etc. can be considered as waste and scrap. However, in the present case, the Chartered Engineer Shri Shori in his opinion has clearly opined that the goods are usable as such. It is clear that the usability and not the length is the criterion for deciding whether the goods are scrap or not. The goods reported in the present case were complete and contained MS rounds instead of HMS and could not be said to be waste material and, therefore, the Commissioner has rightly held that the invoice price for HMS is liable to be rejected as the import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l without discussing the issue and merits of the case altogether? c) Whether the Order of the Ld. Tribunal is per se, illegal and the findings recorded therein are perverse and unsustainable in the eyes of law? Facts from Customs Appeal No. 29/2008 are considered. The Respondent/Assessee imported material vide bill of entry No. 699 dated 26.04.2000 consisting of two containers. In the bill of entry description was declared as HMS classifiable under Chapter Heading 7204.49 of First Schedule to the Customs Tariff Act, 1975. The Respondent/Assessee claimed concessional rate of duty @ 5% in terms of Notification No. 16 of 2000-Cus dated 01.03.2000. The goods were invoiced at USD 100 PMT by foreign supplier and the Assessing Officer loaded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.2002 ordered the goods to be classified as MS Rounds valued at Rs. 7.76 per Kg. The Adjudicating Authority further ordered confiscation of the goods but allowed redemption on payment of fine of Rs. 50,000/- and penalty of Rs. 25,000/-. The Respondent filed Appeal before the Commissioner (Appeals) and Commissioner (Appeals) vide Order dated 30.11.2004 rejected Appeal of the Respondent. The Respondent further filed Appeal before the Tribunal assailing the Order passed by lower authorities. The Tribunal vide its Order dated 06.02.2008 allowed Appeal of the Respondent. The Tribunal directed that pending goods may be released to the Respondent after affecting mutilation under Customs supervision thereby rendering them as scrap. The scrap so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed mutilation Application so Commissioner has wrongly rejected their Application. After hearing arguments of the Counsel of both the parties and perusal of record, we are of the considered opinion that Appeal of the Revenue must be allowed. The reliance placed by the Respondent on the judgment of this Court in the case of M/s Patiala Castings Private Limited (supra) is misplaced. This Court in various paras has found that goods imported by the said Petitioner were metallic scrap and not serviceable pipes. It had been found that the goods were rusted, pitted and perforated and had been even repaired whereas it is not case of the Respondent. The Respondent had also filed Writ Petition No. 9089 of 2000 but this Court did not allow mutilat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the usability and not the length is the criterion for deciding whether the goods are scrap or not. The goods reported in the present case were complete and contained MS rounds instead of HMS and could not be said to be waste material and, therefore, the Commissioner has rightly held that the invoice price for HMS is liable to be rejected as the importer has mis-declared the description as well as the value of goods with an intent to evade customs duty. Resultantly, the order passed by the Tribunal is set aside, appeal filed by the Revenue is allowed and the orders passed by the Adjudicating Authority and the Commissioner are upheld. The questions of law are answered against the Assessee and in favour of the Revenue. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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