TMI Blog2016 (3) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... ted:- 2-2-2016 - Hon ble Shri R. Periasami, Technical Member And Hon ble Shri P. K. Choudhary, Judicial Member For the Appellant : Shri N Viswanathan, Advocate For the Respondent : Shri R. Subramaniyan, AC (AR) ORDER Per P. K. Choudhary Miscellaneous application is listed today for early hearing. 2. The Ld. Counsel Shri N.Viswanathan, Advocate appearing on behalf of the appellant assesse submits that the issue relates to import of Used damaged cut rails for melting (melting scrap) classifiable under 7204 4900 and thereby denying the benefit of exemption under Notification No.12/2012, S.No.332. 3. He further submits that the issue is no more res integra and has already been decided by this Tribunal in the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 3 (S.C.). This decision held that rails, billets, plates, axles channels, etc., are to be treated as scrap. However this decision is in the context of the Central Excise Tariff which was in force prior to 1986 which Tariff was not based on HSN. (ii) Sujana Steels Ltd. v. CCE - 2000 (115) E.L.T. 539 (Tri.) classifying used and rusted pipes under 72.04 in preference to Heading 73.04. This decision does not examine the issue of difference between melting scrap and re-rollable scrap. (iii) Patiala Castings Pvt. Ltd. v. UOI - 2003 (156) E.L.T. 458 (P H). The decision is in relation to rusted, pitted and perforated pipes. This decision is focused on the release of the goods. It does not raise the issue that the goods could be r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 72.04 and the distinction between re-rollable scrap and melting scrap. .... .... .... 22. In the present case the competing Headings are 72.04 for scrap and 73.02 for rails. Notes under Heading 73.02 nowhere specifically state that old and used rails cut into small pieces are classifiable under this heading. Revenue is taking umbrage under the part of the sentence in HSN Notes that heading covers all lengths of such rails including bullhead rails, flange (or flat-bottomed) rails, grooved tram rails, slot rails for electric tramways and conductor-rails etc. irrespective of their intended use . It is seen that the intended use is amplified to mean overhead transporters, mobile cranes, etc. Obviously the Note is not dealing with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to deal differently with cut and used rails as compared to used railway axles is not consistent with the matter in dispute. (iii) There has been no change in the Tariff descriptions or description in notification which would warrant a change in practice. In such a situation it is necessary to maintain consistency. (iv) Another agency concerned with import of goods namely DGFT is of the view that the goods are classifiable under Heading 72.04. It is desirable to maintain consistency in classification for the purpose of deciding import policy and levying customs duty. (v) Between the two competing Headings of 72.04 and 73.02 argued before us we consider Heading 72.04 to be more appropriate. (vi) The goods were in fact use ..... X X X X Extracts X X X X X X X X Extracts X X X X
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