TMI Blog2013 (9) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... in Appeal No.C/81/2010 wherein Commissioner of Customs (Import), Seaport, Chennai was the respondent. 2. The basic issue in dispute in the appeal was whether cut pieces of rails of length less than 2 meters were to be classified under Customs Tariff Heading 7204 as contested by the importer or under Customs Tariff Heading 7302 as contested by Revenue. The final order gave a decision that the goods were to be classified under Heading 7204. 3. The learned AR for Revenue submits that the final order passed by the Tribunal is defective on account of mistakes, apparent on record, listed in the following paragraphs. 4. In this case goods imported are used and worn out rails cut into pieces of length less than 2 meters. The goods were described as "Heavy melting scrap" with intention to get over licensing control and also to avail exemption meant for melting scrap and not available to re-rollable scrap. So this is a case of mis-declaration of goods as heavy melting scrap instead of describing the goods as "cut used rails". The issue of mis-declaration has not been dealt with in the impugned order. 5. The Test report issued by National Metallurgical Laboratory shows that about 90% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such Authorities and, therefore the contents of such circulars could also be considered as evidence available before them. On the basis of all the materials available on record including the evidence, the Assessing Authority has come to an independent finding on its own and therefore, in our considered opinion, the matter can now be allowed to be determined by the Assessing Authority in the light of the aforesaid observations". 9. The Ld. A.R. for Revenue argues that the High Court's decision was thus overruled by the Hon'ble Supreme court and relying on such overruled decision has resulted in a wrong decision by the Tribunal in the impugned order. 10. It is further submitted that the Tribunal has overlooked Section Note 8 (n) of Section XV of the Customs Tariff, which reads as under:- (n) Angles, shapes and sections: Products having a uniform solid cross-section along their whole length which do not conform to any of the definitions at (if), (k), (I) or (m) above or to the definition of wire; Chapter 72 does not include products of heading 7301 or 7302. 11. Further it is pointed out that HSN Note 73.02 states that rails of all lengths shall be classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by DGFT and Customs authorities and decisions like that in Loyds Steel Industries Ltd. Vs CC -2007 (207) ELT 431 (Tri-Mum) we do not see merit in the argument of Revenue that this is a case of mis-declaration of description of goods. Such case had to be examined if the Tribunal had come to a conclusion that the goods cannot be considered as melting scrap. This is not the case. So there is no error apparent on record to be rectified on this count. 19. The argument of Revenue that HSN notes are a safe-guide for interpretation of Customs Tariff has been recorded in para 11 of the impugned order. But the Tribunal did not consider the notes to have binding force in view of various other facts recorded in the order and judicial decisions and arguments recorded in paras 18 to 24 of the order. So we do not consider this to be a mistake apparent on record. 19.1. When there are many decisions of the Tribunal and higher courts dealing with same or similar issue, there is a need to maintain consistency. It is recorded in para 20 of the impugned order that it is one of the major considerations which weighed with the Tribunal while giving the decision. It is considered proper to amplify thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ex Court in UOI Vs. Madras Steel Re-Rollers Association 2012 (278) ELT 584 (SC) only upholds this principle and does not give any other ruling apart from observing that,- "The Circulars issued by the Department which are in the nature of guidance to such authorities and therefore the contents of such circulars could also be considered as evidence available before them" 19.7 The Tribunal has considered all the evidences and arguments placed before it and passed detailed order. There is no apparent mistake in the impugned order on this count. 20. Revenue's reliance on Section Note 8 (n) does not have much force in as much as for this note to trigger, first the classification under heading 73.02 is to be proved, which is the core issue in dispute. The Tribunal found that the material imported could not be used as rails. Tribunal was of the view that the impugned goods were no longer usable as rails and the words "irrespective of their intended use" used in notes under heading 73.02 is not for the purpose of differentiating between re-rollable scrap and re-melting scrap. (This is recorded in para 22 and 23 of the impugned order). The goods can be excluded from 72.04 only if it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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