9911796707
TMI Blog2015 (2) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... icer at the time of clearance of the goods enhanced the declared value to 450 USD per MTs for all the Bills of Entry. The goods were cleared and sold to another party. The appellant also imported another three consignments vide Bills of Entry No.695193 dated 7.10.2004, 702063 & 702064 both dated 20.10.2004. 1.2 The DRI officers examined the goods under the cover of Bills of Entry dated 7.10.2004 and 20.10.2004 in the presence of the scientist of National Metallurgical Laboratory (NML) and others. The scientist took representative samples for analysis. NML vide their report dated 27.10.2004 had opined that the samples are not prime quality and can be considered as "Non-Alloy Steel slabs non-prime". 1.3 The appellant requested to retest of the samples, which was rejected by the Department. The Department issued show-cause notice dated 31.3.2005. Addendum to show-cause notice was issued on 4.8.2005. In the said show-cause notice, it was proposed to deny the benefit of concessional rate of duty vide Notification No.21/2002-Cus. (supra) and demanded differential duty on the basis of declared value @ EURO 280 per MT. It has also demanded the interest, penalty and to confiscate the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e re-testing of the goods in question and directed the Commissioner of Customs to proceed with the adjudication proceedings and to complete the same based on the test report dated 21.4.2009 obtained in terms of the order dated 1.12.2006 of Division Bench. Revenue filed appeal before the Hon'ble Division Bench against the judgment dated 20.3.2012. By judgment dated 15.10.2012, in W.A. No.2244/2012 and M.P. No. 1/2012, the Hon'ble Appeal Court dismissed the writ appeal and directed the Department to comply with the order dated 20.3.2012 within two weeks. 2. Thereafter, the adjudicating authority passed the impugned adjudication order dated 31.12.2012. By the impugned order, the adjudicating authority treated the impugned goods as "Non-Alloy Steel slab (non-prime)" and rejected the benefit of the concessional rate of duty under Notification No. 21/2002-Cus. (supra) and accepted the declared value as transaction value and also confirmed the demand of differential duty along with interest and penalty. He has also confiscated the impugned goods and imposed redemption fine. It has also imposed penalty on Shri Ashok Sharaf, Managing Director of the appellant-company. Hence the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Evidence Act. He submits that under Section 63 of the Evidence Act, the "unofficial translation" without any signature of anybody cannot be accepted as evidence. The learned Advocate filed written submission. 4. On the other hand, the learned AR for Revenue reiterates the findings of the adjudicating authority and has filed written submission. He submits that the adjudicating authority had given a clear finding why he was discarded the MSME test reports in detail. The Hon'ble High Court had not given any direction to follow only the report of MSME and the contention of the learned counsel on this issue is incorrect. He further submits that the adjudicating authority had also proceeded on the basis of the report of the supplier collected through the First Secretary (Trade), Embassy of India, which is a valid evidence under the Evidence Act. 5. After hearing both sides and on perusal of the records, we find that the appellant filed Bills of Entry for clearance of the goods and declared as non-alloy steel slabs confirming to BIS 2830. The specification of BIS 2830 covers prime quality material. They claimed the benefit of concessional rate of duty under Notification N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... took up adjudication proceedings in pursuance of the order of the Hon'ble High Court. The learned counsel submitted that the Hon'ble High Court directed the adjudicating authority to decide the matter on the basis of the test report dated 21.4.2009. In our view, it seems that the adjudicating authority would complete adjudication proceedings after examining test report dated 21.4.2009. 6. We find from the adjudication order that the adjudicating authority examined the MSME test report dated 21.4.2009 as per direction of the Hon'ble High Court and observed that the report of MSME mentioned, the goods are of uniform size and shape whereas, as seen from the factual data presented, there is a huge heterogeneity in the dimensions of the consignment. The findings of the report and the conclusion are not in tandem. The adjudicating authority reproduced "observed value" of MSME Report in the adjudication order. On perusal of the MSME Testing Report, we find that the "observed value" as reproduced in the adjudication order is incomplete. So, it would be appropriate to look into the relevant portion of the MSME Report, IS2830 and HSN as under:- (A) MSME Report (i) OBSERVATION ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.06.05 823585 dt. 17.06.05 relating to import from M/s. N.V. Steel International S.A. xxxxx xxxxx xxxxx xxxxx xxxxx 7. Report A total of 51 slabs pertaining to all the 9 Bills of Entries representing the entire lot of goods was offered for physical Inspection and testing. All the 51 slabs were subjected to dimensional and surface inspection. The dimensions measured were well within the limits as per the Invoice No. 100105 dated 19.1.2005 as well as India Standards Specifications. All the 51 slabs were found with rusty and flaky scales of 1 mm to 1.5 mm thickness due to long duration open yard storage near sea coast. These scales crumbled to powders due to constant handling, thereby any markings on them could not be identified. However, on some slabs faint paint identification marks were observed whose photographs as evidence are attached for perusal. These slabs were free from other surface defects and their shapes uniform. Slight amount of pitting corrosion was also observed on the surfaces of the slabs which are non-detrimental for further processing. Tan samples were drawn randomly for chemical analysis at our laboratory where the results were within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us sizes at the request of the customers. Moreover, as per HSN, slabs are not required to be made exactly to size, the edges are not accurate. In the above perspective, we find that MSME Report is based on the specification of IS 2830. The adjudicating authority failed to consider that the "Observed Value" of MSME Report is within the limit as prescribed in IS 2830. So, there is no reason to discard the MSME report. Adjudicating authority proceeded on the basis of Public Notice No. 29/2004 dated 18.2.2004. But, the appellant declared the goods "Non Alloy Steel Slabs" BIS 2830. On the basis of Specification BIS 2830, MSME concluded the report that the slabs are prime chemistry. As per MSME report is in conformity with IS specification, we do not find any reason to reject the said report. 8. The other aspect of this matter is that as revealed from "Technical Opinion Report" of MSME Report (Page 10 of Report) as reproduced above that there was three Bills of Entry relating to import of M/s. Frovia covered in the present case and the other six Bills of Entry relating to import from M/s. N.V. Steel International, South Africa. It is seen from the adjudication order that the appellant c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
