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ITC Ltd. Versus Commissioner of Central Excise (Adjn.) , Chennai

2015 (11) TMI 447 - CESTAT CHENNAI

Availment of concessional rate of duty under Notification No.21/2002-Cus. dt. 1.3.2002 - adjustment of amount of customs duty - import of goods misdeclared as "waste paper" containing plastic waste/scrap, metal scrap and cloth scrap (rags) - Held that:- The period of imports in the present case is from 3.9.2002 to 14.10.2004 whereas the above letter is of 2006 and the same is not applicable. Further, the said communication was issued by Ministry of Environment & Forests in the context of polluti .....

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ng the Ministry of Environment & Forests communication is of no relevance for classifying the plastic & metallic waste under respective chapter heading and assessing on merit rate of duty. - As per the condition of the notifications in question, the appellant themselves executed an undertaking before the Customs before clearance of goods, binding themselves that the goods shall be used for the manufacture of paper and paper board and they also undertook that in the event of non-compliance th .....

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at page 99 of the paper book, we find that the advance licence was issued to import items as per the list attached to the licence. Sl.No.2 of the list attached covers ITCHS code 47079000 with description of imported item as waste paper . As already discussed above, the goods were cleared as waste paper under advance licence whereas quantity of plastic waste and metallic waste and cloth waste (rags) were not declared by the assessee. Therefore, such items are not covered under advance licence as .....

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duty availed by the appellants under Notification No.21/2002 as well as full exemption availed under 203/92 Cus. is not eligible on the quantity of plastic scrap, metallic scrap and cloth scrap (rags) and these goods are chargeable to appropriate Customs Duty and the duty demand of ₹ 1,06,10,668/- is confirmed. - Term used outthrows represents only paper unsuitable for consumption and does not relate to plastic scrap & metallic scrap etc. Similarly, as per European Standards Mixed Pa .....

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y of imported waste paper/ pulp, waste paper co-mingled krebside super mix. - Appellants have violated their own terms and conditions of the contract and deliberately not declared non-fibre contraries, plastic scrap and other scraps in their Bill of Entry. Further, on perusal of Bill of Entry No.636370 dt. 31.5.2004, the appellants imported "Mixed Paper" and on examination it contained waste paper and plastic waste/scrap and the same was classified under Chapter Heading 47079000 and Chapter .....

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other scrap but they have deliberately declared the goods as waste paper and not paid appropriate duty on the non-fibre contraries and availed the concessional rate of duty under the above notifications. - Appellants failed to intimate the Customs authorities on their activity of sorting of the imported goods into fibre and non-fibrous contents through M/s.White Star Fibres Ltd. and the quantity of plastic scraps and other scraps recovered and sold in the domestic market. But for the detecti .....

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of 17,901 MTs of fibre contraries and correctly demanded duty on the non-declared items of plastic waste and metallic scrap and cloth waste (rags) by invoking Section 28 of the Customs Act. - demand confirmed by the adjudicating authority is liable to be upheld. Since the plastic waste and scrap is otherwise a restricted item under Foreign Trade Policy the same are liable for confiscation. The order of confiscation of the seized goods under section 111 (d) of the Customs Act and imposition of r .....

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er dated 16.11.2007 passed by Commissioner of Central Excise (Adjudication), Chennai. 2. The brief facts of the case are that appellants were importing and clearing "Mixed Waste Paper" availing concessional rate of duty under Notification No.21/2002-Cus. dt. 1.3.2002. Plastic waste and scrap, metallic waste etc. came in the declared consignment were cleared while the consignments were declared as "Mixed Waste Paper". Plastic waste and scrap, which are restricted items, were n .....

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plastic waste and scrap, a restricted item was not declared by the appellant, consignment covered by both the Bills of Entry were seized under mahazar proceedings on 12.1.2005. 4. On detailed scrutiny of documents and upon further investigation, it was noticed that appellants entered into contract with M/s.White Star Fibres, Lakshmipuram, Secunderabad to sort out imported goods i.e. waste paper into good fibre and non-fibre contraries. The officers of DRI visited the stockyard of M/s. White Star .....

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cal goods of waste paper, mixed papers of sorted grade 5.01 under Bill of Entry No.636370 dt. 31.5.2004 and on detailed examination it was noticed that declared cargo contained non-fibre contraries along with declared cargo which was approx. 15% of the imported goods. Duty was assessed on the non-fibre content and the appellant paid the appropriate duty. It was further noticed that for the subsequent clearances, the appellants have not declared to the Customs the presence of non-fibre contraries .....

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ste, Metal scrap and cloth scrap (rags), restricting the benefit of Notification No.21/2002, proposing to reject the end-use certificate issued for 6 Bills of Entry and to confiscate the goods seized. 7. The Adjudicating authority in his impugned order rejected the transaction value of waste paper and valued the non-declared items fixing the transaction value of Plastic scrap Metallic Waste and Rags @ ₹ 7000/- per MT, ₹ 12000/- per MT and ₹ 1000/- per MT respectively and restri .....

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icating authority ordered adjustment of amount of customs duty of ₹ 8,30,915 already paid towards plastic waste and scrap metal waste and he ordered for confiscation of plastic waste and others valued at ₹ 2,17,00,099/- under Section 111 (d) of Customs Act and imposed redemption fine of ₹ 1 Crore. He also imposed penalty equal to duty on the appellant under Section 114A of the Customs Act. Hence the present appeal. 8. The case was heard on 10.2.2015 & 22.4.2015 and proceedi .....

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ation out of which 2 Bills of Entry related to live consignments. Appellant made a very clear condition in the purchase order to the supplier that "Mixed Papers Sorting Grades.01, Mixed Paper Board, Outthrows 10%." This means to the extent of 10% of other waste in the imported waste paper consignment was permissible. But such a condition does not intend that unintended waste shall be exported by exporters. 8.2 Prior to 2004, appellant had no arrangement to sort out the other waste for .....

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the adjudication. 9. Placing a detailed paper book, summary of the case, notes of arguments, evidence, documents relied upon, notification granting benefit to the appellant, circular issued by C.B.E.&C, and various citations and judgements, ld. counsel brought out the difficulties of the Industry and he argued summarily as under :- 9.1 Live consignments when examined that showed other waste contents around 8% which is the finding by the adjudicating authority in para-2 of his order. The aut .....

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r book. That disclosed "Waste Paper Mixed Paper Sorting Grade-5.01" in some of bills of entry and as "Sorted Grade-5.01" in other bills of entry. Substantial quantity involved in the import was waste paper only but a very small fraction to the extent of 8% was other than waste paper which was not known to the appellant till segregation of the entire lot was made. 9.3 When purchase order was placed, appellant made very clear to the exporter that wastepaper may contain certain .....

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of the goods imported thereby, which was well known to Customs, Central Excise authorities as well as DGFT. 9.5 In the past, all the 52 Bills of Entry were cleared without any examination and without any question. All along the description in the Bills of Entry were given in the manner detailed in pages 28 to 32 of the Paper Book Vol.2 which was also within the knowledge of notice issuing authority since such descriptions were in the file of Customs. Appellant's clearances were nothing stran .....

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g out, different components emerged therefrom. That was informed to the excise authority and that was well within their knowledge since end-use certificates were issued by that authority to the appellant. The appellant maintained full record of the quantity of segregated waste and sales thereof. 9.7 While record reveals different composition of the other waste in 52 consignments imported during the period 3.9.2002 to 14.10.2004, there was hardly about 1% of such constituent in the consignments. .....

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port of paper waste, it made representation to the Government and the Ministry of Environment and Forests in its communication dated 23.6.2006 informed to the industry that other waste to the extent of 8% is permissible. In view of such clarification, although came after the imports that guideline cannot be brushed aside because live consignments were within the tolerance limit of 8% and appellant is entitled to such benefit. 10.0 Ld. Commissioner did not examine the difficulty of the Industry. .....

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e imported were intended to be used which does not mean that those are necessarily to be used following the ruling of the apex court in the case of State of Haryana Vs Dalmia Dadri Cement Ltd. - 2004 (178) ELT 13 (SC). Reading para-10 of the judgement it was submitted that any expression "for use" used in a notification should be interpreted as "goods intended for use" but not as "goods actually" used or "goods used". Further, relying on para-12 of the jud .....

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benefit of exemption notification is admissible to it. Accordingly, when there was no deliberate import of the unusable material, the benefit of notification cannot be denied following ratio laid down in the above two judgements(supra). 10.2 Since the goods were not segregable at the stage of import, classification thereof was made under CTH 47079000 For such purpose, learned senior counsel relied on the decision of Dunlop India Ltd. & Madras Rubber Factory Ltd. Vs UOI & Others - 1983 (1 .....

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ropean List of Standard Grades of Recovered Paper and Paper Boards (Ref. Pages 41, 42, Volume 2 of PB) (b) Publication of Technical Association of Pulp and Paper Industry, Atlanta (Ref. Pages 43/Volume 2 of PB) 10.4 Ld. Senior counsel submitted that the imports relate to the year 2002-04 and past clearances were relating to 52 Bills of Entry covering the period prior to 3.9.2002 to 14.10.2004. Details of all the Bills of Entry, content thereof, understanding of the parties, global practice, clas .....

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ut burden of proof by Revenue was not discharged to bring out nature thereof. So merely alleging that the lot contained other than paper waste, that does not satisfy the law declared by the Apex Court. It is the necessity of law that suppression should have been wilfully done with the intention to cause evasion which are essential ingredients of section 28 of Customs Act, 1962. It was not for the appellant to establish veracity of the allegation but the person who alleges has to specify whether .....

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provisions thereof. Apart from that, there should be mensrea with predetermined mind to cause evasion as well as presence of elements of Section 28 to invoke that section. He specifically relied on para 24 of the above judgement to explain the ratio thereof and submitted that in absence of any of the ingredients of Section 28, present show cause notice has no jurisdiction. 12. Relying on the ratio laid down by Supreme Court in the case of Chamundi Diecast Private Ltd. Vs CCE Bangalore - 2007 (21 .....

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barred. Further reliance was placed on the Hon'ble Supreme Court's judgements as under:- (Ref. Vol.4 of PB), (i) Primella Sanitary Products Private Ltd. Vs CCE Goa 2005 (184) ELT 117 (SC) (ii) Gopal Zarda Udyog Vs CCE New Delhi 2005 (188) ELT 251 (SC) (iii) Pushpam Pharmaceuticals Company Vs CCE Bombay 1995 (78) ELT 401 (SC) (iv) Padmini Products Vs CCE 1989 (43) ELT 195 (SC) 14. The appellant submits that when there was no suppression of facts, there is no question of any adjudication i .....

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notification condition. The notification requires that the goods are the goods meant to be used. Therefore entire import being meant for use, the appellant meant entire import to be used. Accordingly, notification benefit is not at all deniable. 15. Lastly, appellant fairly submitted that if at all Tribunal comes to a conclusion that there should be segregation of the goods according to the contents and composition for levy, the valuation adopted by Revenue in respect of those goods remain undi .....

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nicipal waste there was no adverse view taken by the Tribunal except imposing a penalty. Similarly, Hon'ble High Court of Madras in ITC Ltd. Vs Norasia Container Lines Ltd. - 2009 (247) ELT 60 (Mad.) has taken a view that goods which was not intended to be used should not have been imported. Therefore appellant deserves lenient consideration when the contents in imports were beyond control of appellant to know the same. SUBMISSIONS OF REVENUE : 17.1 Submitting on behalf of Revenue, learned D .....

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n authorized to it by the licence. The term will be used is significant in the notification under condition No.20 thereof. Appellant declared to Customs that entire goods imported shall be used in manufacture for which undertaking was given by the appellant in that respect. Therefore, the quantity of undesired goods stated above came to India not being used in manufacture, there was violation of the condition of the notification. Accordingly, not only appellant is liable to duty on the equivalen .....

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be abused. When appellant was not an actual user of the entire import but aforesaid quantities were sold without being used in the manufacture of the specified goods, it was not entitled to the benefit of the notification. The condition will be used having been violated, that warranted levy of duty as well as penalty and confiscation. 17.3 There was no declaration to the Customs about the composition of the import and the quantity thereof in the consignment covered by each Bill of Entry. Only u .....

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ugh 52 Bills of Entry. Accordingly, neither benefit of notification No.21/2002 nor notification No.203/92 is admissible. The appellant is required to prove strictly that entire goods imported were used in the manufacture as per undertaking given. But it did not adhere to that. The end-use certificate is not conclusive evidence of use of entire import. Therefore, it shall not come to the defence of the appellant because undertaking given at the time of import was not fulfilled. 17.5 The waste qua .....

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ty. Detection by DRI on 31.3.2004 made it clear to the authority that the appellant has violated norms of the notification calling for inadmissibility of benefit of the notification. Added to this, violation of actual user condition has rightly exposed the appellant to consequence of confiscation and penalties. Department has rightly computed duty liability only in respect of aforesaid questionable quantity of goods and on no other elements of import. 17.6 Countering the proposition of the appel .....

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f the notification. When there was violation of condition of notification by its own declaration, it is liable to duty as well as penalty and confiscation. 17.7 Appellant was very well aware before import that it intended to import nearly 10% inadmissible goods to its benefit. Therefore, it was liable to declare suo moto that 90% of the goods were eligible to the notification benefit and 10% of the goods were dutiable. When the appellant deliberately imported waste other than paper waste it cann .....

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ain for which it is liable to duty and other consequence of law. 17.8 It is well settled law that what is prescribed in the notification as well as chapter note, interpretative rules shall govern the classification and intention of the import. Appellant failing to satisfy the conditions of the Interpretative Rule and Section Notes was liable to consequence of law. 17.9 When the goods imported contained all unwanted mixture therein, it was environment unfriendly import and that is contrary to law .....

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the Bill of Entry No.636370 dt. 31.5.2004. That is enough to hold that appellant acted malafide. When the appellant protested the action of Customs in respect of B/E dt. 31.5.2004 by its letter dt. 30.9.04 it should have come out with clean hands to prove its bonafide. Allegation of malafide was proved by Revenue bringing out entire material fact, motive and conscious knowledge of appellant as revealed from the statements recorded. Therefore, appellant cannot claim that he is innocent and not l .....

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OF APPELLANT : 20. In rejoinder, on behalf of the appellant, it was submitted that so far as Bill of Entry No.636370 dt. 31.5.2004 is concerned, the appellant well explained to the customs authorities on 30.9.2004 that because of lying of goods for a long time, and demurrage having been suffered it shall clear the goods without prejudice to its right to contest the same if any proceedings is initiated in future in this respect. Therefore, when clearance was made under protest, that absolves the .....

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t of the goods imported without any compromise. Therefore, the allegation of Revenue is baseless. Notification benefit is to be granted in the manner as declared by the judgement of the apex court. Even though the term will be used is appearing in the condition it is qualified by the words intended to make use. Therefore, when appellant was prevented to make use of other waste for reasons beyond its control it cannot be denied benefit of notification. b) There is no dispute that Chapter 47 appli .....

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aper" containing plastic waste/scrap, metal scrap and cloth scrap (rags) and demand of duty as well as penalty on such goods. So also confiscation of consignment was done imposing redemption fine. The adjudicating authority in his impugned order has discussed the issue at length and confirmed the duty on the following goods :- Sl.No. Quantity Item (1) 2468.057 MTs Plastic Waste/Scrap (2) 360.35 MTs Metallic Waste (3) 103.280 MTs Cloth Waste (Rags) The appellant filed 52 Bills of Entry cover .....

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d which was approx. 8% of the total quantity. Follow up investigation revealed that appellant entered into contract with third party M/s.White Star Fibres to sort out the waste paper into fibre and non-fibre contraries pertaining to the above 52 ills of Entry as per the records available with them as well as with M/s.White Star Fibres. Out of the total quantity of waste paper, non-fibre contraries contained above items viz. Plastic Waste/Scrap, Metallic Scrap and Cloth Scrap (rags)which is clear .....

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ste paper which was not known to the appellants at the time of import and also contended that they are eligible for the benefit of notifications hereinbefore stated on waste paper and there was no misdeclaration and contended that since the goods were assessed finally, there is no question of suppression of facts and therefore demand is hit by limitation. It was also contended that "Mixed Waste Paper" is rightly classifiable under 47079000 which covers unsorted waste and scrap . 23. As .....

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rade It is seen from the above that appellants used different description of the goods and declaring that all these goods are classifiable under CTH 47079000 to claim concessional rate of duty as per S.No.152 read with Condition No.20 of Customs Notification No.21/02-Cus. dt. 1.3.2002 and cleared the same. It is relevant to place the Exemption Notification No.21/2002 for appreciation of spirit and intent thereof: "Exemption and effective rates of basic and additional duty for specified good .....

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of the Table below or column (3) of the said Table read with the relevant List appended hereto, as the case may be, and falling within the Chapter, heading or sub-heading of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as are specified in the corresponding entry in column (2) of the said Table, when imported into India,- (a) from so much of the duty of customs leviable thereon under the said First Schedule as is in excess of the amount calculated at the rate specified in the .....

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ds Stan- Addi Condi- Heading No. dardtionaltion or Sub-heading rate duty No. No. rate (1) (2) (3) (4) (5) (6) 152. 47.07 All goods imported for use, 5% Nil 20 in, or supply to, a unit for manufacture of paper or paperboard. ANNEXURE Condition No. Conditions 20. If,- (a) the importer furnishes an undertaking to the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be, that such imported goods will be used for the purpose specified and in the event of his fai .....

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or Assistant Commissioner may allow, a certificate issued by the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, in whose jurisdiction the said goods have been used in such unit, that the said goods have been so used." 24. As seen from the above, Sl.No.152 of the notification exempts all goods falling under Chapter 47.07 for use in the manufacture of paper and paper board which is chargeable to Concessional Customs duty @ 5% and Ad .....

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ndition of the notification is that the importer or the appellant executes an undertaking before the Deputy Commissioner of Customs that the imported goods will be used for the manufacture of paper and paper board which is a final product and in the event of appellant s failure to comply with this condition they shall be liable to pay the duty in respect of such quantity of the said goods as is not proved to have been so used but for the exemption under this notification. 26. On perusal of the r .....

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e used in manufacture of final product without sorting out the fibre contents and non-fibre contraries and sent the contraries directly to M/s.White Star Fibres, confirm and prove that appellants have not fulfilled the mandatory condition of the notification to the extent of quantity of plastic waste, metallic waste and cloth waste (rags) as other contraries not covered under Sl.No.152 of the said notification and also not used in the manufacture of paper and paper board. The appellants relied o .....

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t into India in the name of waste paper. Further, we find the Customs issued standing order dt. 18.2.2006 and subsequently issued addendum to the said standing order on 31.3.2006 based on Ministry of Environment & Forests letter wherein at 6(i) of the said standing order, it is categorically stipulated that the plastic and metallic waste found in the waste paper are to be assessed to merit rate of duty. Therefore the appellants relying the Ministry of Environment & Forests communication .....

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h quantity. Therefore, it is established beyond doubt that the above quantity of plastic waste/scrap, Metallic scrap and cloth waste imported in the guise of waste paper are not eligible for exemption under Sl.No.152 of the Notfn. 21/2002. Therefore, appellants are liable to pay appropriate customs duty on the above items. 28. Further, we find that in respect of 23 Bills of Entry, appellants imported and declared the goods as "waste paper" and availed the benefit of exemption under not .....

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of this notification; and (b) makes a declaration before the Assistant Commissioner of Customs or Deputy Commissioner of customs binding himself to pay on demand an amount equal to the duty leviable but for the exemption, on the imported materials in respect of which the conditions specified in this notification have not been complied with: 29. We find that condition (ii) (b) of Notfn. 203/92 is similar to condition 20 of Notfn 21/2002. On perusal of the Advance Licence No.0910028933/2/03/00 at .....

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t was permitted for import under advance licence is waste paper and not plastic waste and scrap and metallic waste and scrap etc. and not covered under the said Advance Licence. Therefore, in terms of condition (ii) (b) of the notification 203/92 and as per the undertaking executed by the appellant before Customs the appellants are liable to pay appropriate Customs duty on the quantity of plastic waste, metallic waste and cloth waste and cleared under 23 Bills of Entry. 30. As already explained .....

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use by the PSU in generation or distribution of electricity. In the above context, the Apex Court held that the word "use" figuring in Sales Tax provisions means "intended for use" by the PSU. The present case is on a different footing where the exemption notification 203/92 is specific with mandatory condition that the waste paper shall be used for manufacture of paper & paper board and the appellants executed an undertaking before Customs to that effect and the adjudica .....

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tification and the condition must be obeyed/fulfilled as exactly stated in the notification. The ratio laid down by the Hon'ble Supreme is as under :- "22. The law is well settled that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession. A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has .....

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In Novopan Indian Ltd. (supra), this Court held that a person, invoking an exception or exemption provisions, to relieve him of tax liability must establish clearly that he is covered by the said provisions and, in case of doubt or ambiguity, the benefit of it must go to the State. A Constitution Bench of this Court in Hansraj Gordhandas v. H.H. Dave - (1996) 2 SCR 253, held that such a notification has to be interpreted in the light of the words employed by it and not on any other basis. This .....

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and were built in with certain specific objectives of policy, on the one hand, and those which are merely procedural and technical in their nature, on the other, must be kept clearly distinguished. In Tata Iron and Steel Co. Ltd. (supra), this Court held that the principles as regard construction of an exemption notification are no longer res integra; whereas the eligibility clause in relation to an exemption notification is given strict meaning wherefor the notification has to be interpreted i .....

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party does all that can reasonably expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be described as the essence or the substance of the requirements. Like the concept of reasonableness , the acceptance or otherwise of a plea of substantial compliance depends upon the facts and circumstances of each case and the purpose and object to be achieved and the context of the prerequisites which are essential to achieve the object and purpose of the rule or the reg .....

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and the court should determine whether the statute has been followed sufficiently so as to carry out the intent of the statute and accomplish the reasonable objectives for which it was passed. Fiscal statute generally seeks to preserve the need to comply strictly with regulatory requirements that are important, especially when a party seeks the benefits of an exemption clause that are important. Substantial compliance of an enactment is insisted, where mandatory and directory requirements are l .....

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invoke a tax or duty exemption and to forgive non-compliance for either unimportant and tangential requirements or requirements that are so confusingly or incorrectly written that an earnest effort at compliance should be accepted. The test for determining the applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, the critical question to be examined is whether the requirements relate to the substance or essence of the statute, if so, str .....

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the above decision is squarely applicable to the facts of this case as it established beyond doubt that appellants had imported and misdeclared 2468.057 MTs of Plastic Waste/Scrap, 360.35 MTs of Metallic Waste and 103.280 MTs of Cloth Waste (Rags) and the said goods were cleared as waste paper and to that extent the appellants failed to comply the mandatory condition of the notification. Therefore, by respectfully following the above Apex Court's decision, we are of the considered view that .....

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scrap and as per HSN Explanatory Notes read with Interpretative Rules of classification of goods, other contraries cannot be classified or assessed separately and as what is imported is Mixed Waste Paper and rightly classifiable under Chapter Heading 4707 as the percentage of contraries is negligible. It is relevant to place the HSN 4707 which reads as under:- 47.07 Recovered (waste and scrap) paper or paperboard(+) 4707.90 Other, including unsorted waste and scrap Waste of paper or paper board .....

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waste paper, is excluded (heading 48.23) The heading also excludes waste and scrap of paper or paperboard, containing precious metal or precious metal compounds, of a kind used principally for the recovery of precious metal, e.g., waste and scrap photographic paper or paperboard containing silver or compounds thereof (heading 71.12) Subheading Explanatory Note Subheadings 4707.10, 4707.20 and 4707.30 Although, in principle, subheadings 4707.10, 4707.20 and 4707.30 cover sorted waste and scrap, .....

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s amply clear from the HSN Explanation that sub heading 4707.90 covers Other including unsorted waste and scrap. Section X and Chapter 47 of CTH covers only "Pulp of wood or of other fibrous cellulosic material; recovered (waste and scrap) paper or paper board". If the Section X and Chapter 47 description and sub heading 4707 read harmoniously it is evident that what is covered under the main heading 4707 and chapter subheading under 47079000 is only "waste and scrap of paper or p .....

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n the present case and clearly distinguishable. The above case relates to classification of V.P. Latex and as to whether it is to be classified as raw rubber, whereas the present case relates to plastic scrap, metallic scrap imported and same is not declared by the appellants but cleared as waste paper. Therefore, there is no merit in the appellant s claim. Accordingly, we hold that the plastic waste and scrap, metallic waste, cloth waste (rags) are rightly classifiable under appropriate sub hea .....

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t; and also contended that sorting grades contains 10% out throws which is permissible as per the European standards. We find that the adjudicating authority in his findings at para-12 has dealt in detail on the mentioning of 10% out throws and the term used mixed paper sorting Grade 5.01. The same is reproduced as under :- "In the import documents, there was a mention of 10% outrhrows of the total declared quantity. As per the European / Australian standards, the term "Outthrows" .....

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at source." 34. It is apparent from the above fact that the term used outthrows represents only paper unsuitable for consumption and does not relate to plastic scrap & metallic scrap etc. Similarly, as per European Standards Mixed Paper Grade 5.01 relates to unsorted paper & paperboard. Therefore, we find that as rightly held by the adjudicating authority the plastic scrap and metallic scrap etc. cannot be treated as mixed waste paper and the appellants failed to declare these items .....

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UNSLUSHABLE FIBER, PLASTICS, WAX COATED PAPER AND POLY IMPORTED WASTE PAPER/PULP LAMINATED WASTE AND OTHER CONTRARIES. WE RESERVE OUR RIGHTS TO CLAIM FROM DAMAGES CAUSED TO OUR PROCESS MACHINE APART FROM THE LOSS ON ACCOUNT OF PRODUCTION AND MATERIAL LOSS BOTH, RAW MATERIAL FINISHED GOODS. 35. From the above clause, it is abundantly clear that it is strictly stated in the above clause that non-fibre contraries are not acceptable and materials should not have unslushable fibre, plastics, wax coat .....

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der Chapter Heading 47079000 and Chapter 39159029 respectively and appellants themselves had paid appropriate duty on plastic scrap whereas in all the subsequent imports of 17 Bills of Entry which are annexed as Sl.No.31 to 52 in the SCN they failed to declare the non-contraries i.e plastic waste and scrap. Therefore, appellants have not only flouted their own terms and conditions of contract and imported the goods by not declaring it as plastic waste and scrap and they are fully aware that the .....

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ecovered and sold in the domestic market. But for the detection by the investigation agency, this would not have come to the light. Appellant s contention that they have intimated the Central Excise authorities about the quantity of plastic waste and scrap for issuing end-use certificate is not relevant. As per the condition of the notification appellants failed to inform the customs authorities where the appellants availed the benefit. Therefore, the adjudicating authority has rightly restricte .....

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ty. As rightly stated by the adjudicating authority in his findings at para-10 that appellants sold the plastic scrap, metallic waste & cloth waste to the domestic market on the value much more than the value of the imported waste paper with deliberate intention to evade payment of duty on non-fibre contraries. The above facts clearly established the misdeclaration and suppression of facts with intent to avail concessional rate of duty and with intention to evade payment of customs duty on t .....

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ls Co. Vs CCE and Padmini Products Vs CCE (supra) against the suppression of facts is clearly distinguishable to the facts of this case as already discussed above and all the ingredients for wilful suppression of facts is established beyond doubt. The ratio of the above Supreme Court decisions are not applicable to the present case. Therefore, invoking the extended period under Section 28 is fully justified and well within the law. Correspondingly penal provisions invoked under Section 114A is a .....

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