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Commissioner of Customs (Exports) , Chennai Versus M/s. D.S. Metal (P) Ltd. and others

2015 (9) TMI 924 - MADRAS HIGH COURT

Maintainability of appeal - benefit of Notification No.21 of 2002 - What will be the rate of duty that is payable by the first respondent, but for the notification in question. - Held that:- Court is fortified by a decision of the Gujarat High Court in Commissioner of Central Excise v. JBF Industries Ltd., [2010 (12) TMI 437 - GUJARAT HIGH COURT], - Following this decision; appeal is not maintainable and accordingly, the same is dismissed giving liberty to the appellant to pursue the matter befo .....

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tions of law: "1. Whether "end use" certificates issued in terms of notification 21/02-Cus would have any relevance to decide the duty liability when admittedly 15% of the material are not "melting scraps" and do not qualify for duty exemption as per the said notification? 2. Whether an assessment to duty is based on the condition and nature of the goods found at the time of import and not upon the end use of the product? Whether or not the direction of the Tribunal to t .....

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ection of the Tribunal to extend duty concession on 15% of the goods not covered by the exemption notification by accepting the end use certificate is against the conditions of the Test bond executed by the first respondent on the basis of which the goods were provisionally released and therefore not admissible in law?" 2.1. The first respondent had filed bill of entry dated 14.5.2002 for clearance of 150 MTS of goods described as Non Alloy Steel Melting scrap. The goods were examined with .....

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nai gave a report stating that 85% of the material consisted of rusted components and could be considered as non-alloy melting scrap. However, 15% of the material could be considered as second grade spanner component, which were not re-usable. Hence, the case was adjudicated and the Adjudicating Authority passed an order demanding duty for the 15% of the goods, which were treated as re-usable components. 2.2 Aggrieved by such an order, the assessee filed an appeal before the Commissioner (Appeal .....

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er held that the assessee had produced the certificate in terms of Customs Notification No.17 of 2001 dated 1.3.2001.The Tribunal allowed the appeal by way of remand directing the Adjudicating Authority to adjudicate the case afresh since Notification No.17 of 2001 is pari materia to Notification No.21 of 2002. 2.4. Aggrieved by the said order, the department has filed the present appeal on the questions of law, referred supra. 3. We have heard the learned Standing Counsel appearing for the depa .....

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ds for purposes of assessment would not lie before this Court. He placed strong reliance on the decision of the Supreme Court in Navin Chemicals Manufacturing and Trading Co. Ltd. v. Collector of Customs, 1993 (68) ELT 3 (SC), wherein it is held as under: 11. It will be seen that sub-section (5) uses the said expression determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment and the Explanation thereto provides a definition of i .....

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xpressly confines the definition of the said expression to sub-section (5) of Section 129-D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A dispute as to the classification .....

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for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods. 12. This, then, is the test for the purposes of determining whether or not an appeal should be heard by a Special Bench of CEGAT, whether or not a reference by CEGAT lies to the High Court and whether or not an appeal lies directly to the Supreme Court from a decision of CEGAT: does the question that requires determination have a direct and proximate relation, for the purpos .....

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