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2016 (2) TMI 101 - CESTAT CHENNAI

2016 (2) TMI 101 - CESTAT CHENNAI - TMI - Levy of penalty - mis-declaration of goods - import of second hand machines as scrap - appellant contended that supplier instead of sending after mutilation had supplied as uncut scrap. - Held that:- Appellant is a actual user having manufacturing facility for re-melting the scrap. - Considering the fact that the goods are still lying in customs custody since 2004, and appellants have not exercised the option of redeeming the goods on payment of redempti .....

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I, TECHNICAL MEMBER AND SHRI P.K. CHOUDHARY, JUDICIAL MEMBER For the Petitioner : Shri C. Ramkumar, Advocate For the Respondent : Ms. Indira Sisupal, AC (AR) ORDER Per R. Periasami The appeal filed by assessee is restored consequent on the Hon'ble Madras High Court order dt.8.11.2006. 2. The facts of case relates to import of Heavy Melting Scrap (Uncut). The appellant filed two Bills of Entry for clearance ofa total quantity of 169.9 MTS (142.10 MTs + 27.8 MTs) of goods declaring it as " .....

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confiscated the goods and imposed redemption fine of ₹ 5 lakhs and also confiscated 20.53 MTs of HMS and imposed RF of ₹ 25,000/-. He also imposed penalty of ₹ 3 lakhs on the appellant under Section 112 (a) of the Customs Act. 3. In the first round of litigation, the appellant filed appeal before Tribunal against the impugned order. The Tribunal in their Final Order No.377/2006 dt.1.5.2006 dismissed the appeal as time-barred. The appellant preferred writ petition before the Hon .....

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eleased and is still in Customs custody.On imposition of penalty he submits that appellants are not liable for penalty and says that they have correctly declared is scrap. He drew our attention to invoice at page 15, statement of Director of appellant-company, Chartered Engineer's certificate. He submits that Chartered Engineer has certified that unless the worn out parts of about 60 to 80% of the items are replaced, only then the said machines can be revived, and in the case of other items .....

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o are only scrap dealers for the purpose of using it as scrap. The supplierclarified that due to labour problem the goods could not be cut and mutilated before shipment and the same were sent as "uncut". Ld. counsel submits that Appellant also requested for re-export or to mutilate, and the adjudicating authority has not considered their request for re-export as well as for mutilation and confirmed the demand. He relied Board's circular No.1/2005 dt.11.1.2005 and also Interpretativ .....

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e confiscation of goods and redemption fine but only contesting to set aside the penalty of ₹ 3 lakhs imposed under Section 112 (a) of the Customs Act. On perusal of records we find that appellant is the actual user having melting furnace and they are regularly importing melting scrap for the past several years as actual user for re-melting. On perusal of Bills of Entry and the invoice, we find that appellant declared the goods as "Heavy Melting Scrap (uncut)". However, on examin .....

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