TMI Blog2012 (9) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... fine and penalty if any - appellant shall pay the differential duty as provisionally assessed - C/441-443/2011 - C/339-341/2011(PB) - Dated:- 22-7-2011 - S/Shri Ashok Jindal, Mathew John, JJ. REPRESENTED BY : Shri Sudhir Malhotra, Advocate, for the Appellant. Shri Sunil Kumar, SDR, for the Respondent. [Order per : Ashok Jindal, Member (J)]. The Appellants have filed these appeals along with stay applications and Misc. Applications for early hearing of the appeals. 2. As all the matters are listed for hearing today and considering the fact that issue involved is of live consignments and relief is to be sought for provisional release of the goods, therefore, the applications for early hearing are allowed and appeals are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.27656 1800 MT 3. Alloy Steel Scrap 16.83606 1100 MT 4. HMS 3.30456 350 MT 4. The said items were imported by the appellant s in the guise of HMS. The same were seized under Section 110 of the Customs Act and panchnama was drawn. Thereafter, further investigation took place and investigations were done, statements were recorded of the appellants. As the goods were incurring heavy demurrage charges, the appellants moved an application for provisional release of the seized goods. The goods were allowed to be released provisionally subject to the following conditions :- (a) On payment of differential duty in addition to the duty already paid of Rs. 8,78,023/- on T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in small pieces being costly affair, therefore the said goods have been received in this condition and the use of this impugned goods is only as heavy melting scrap. Therefore, the description of goods is correct. To controvert the report of impugned goods as per the examination of the imported goods by Chartered Engineer, no report of the chartered engineer was supplied to them. Therefore, the condition prescribed in the order are not correct. Moreover, he also submitted that the value taken in the order is also not correct. He also submitted that in this case, the last statement of the appellant was recorded on 23rd Feb 2011 and thereafter, no investigation was conducted and vide order dated 31-5-2011, the DRI has offered provisional re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided to the appellants. Therefore, the insistence of appellants to supply the Charted Engineer s report is not sustainable. He submitted that the representative sample cannot be drawn in the case of scrap. Therefore, as held by the Commissioner in the impugned order that the goods are further required to investigation to ascertain the end use of the material, the goods are required to be seized and the extension of the seizure of goods for another six months to issue show cause notice is justified. 8. Heard both sides. 9. On hearing both sides, it is a case of provisional release of the impugned goods. Therefore, we are deciding the stay applications as well as appeals both at the same time together. 10. On a careful consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terprises (supra) wherein the Hon ble High Court has held that the condition of giving declaration that the assessee will not challenge the value of goods, the assessee cannot be deprived of opportunity to contest classification or valuation. If the condition is allowed, the department can allege any valuation and continue to have goods under detention unless the aggrieved party withdraw the challenge of valuation. The same will amount to denial of justice. To provisionally release of the goods, the authorities have to safeguard the revenue with regard to duty, redemption fine and penalty if any. 13. With regard to the description of goods, a representative sample can be drawn. In this case, it is an admitted fact that HMS is in shape of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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