TMI Blog2017 (3) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... s held that whether the zinc dross in question is of seal grade or any other grade, the same is classifiable under heading 79020010 - appeal allowed - decided in favor of appellant. - C/1168/06-Mum - A/86328/17/CB - Dated:- 10-3-2017 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri Anil Balani, Advocate, for appellant Shri S.J. Sahu, Assistant Commissioner (AR), for respondent ORDER Per M. V. Ravindran This appeal is directed against order-in-original No. S/26-Misc-205/2006 Gr.IV // S/10-Adj.-457/2006 Gr.IV dated 20.7.2006. 2. The issue that falls for consideration is appellant herein imported a consignment of zinc dross shelf and filed a bill of entry. Lower authorities examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings and submits that the ITC (HS) classification of 79020010 clearly covers their case and the ISRI definition of zinc dross shall also be applicable to them. He relies on the decision of the Tribunal in the case of Varun Aluminium Industries Ltd. vs. CC, Nhava Sheva 2002 (141) ELT 238 and Hiren Aluminium Ltd. vs. CC, Nhava Sheva 2003 (158) ELT 237 , for the proposition that ISRI specifications are merely guidelines and variations to specifications permissible subject to agreement between buyer and seller. Learned counsel also brings to our notice the judgment of this Tribunal in the case of Rose Zinc Ltd. vs. CC, Jaipur 2011 (274) ELT 417 on an identical issue and submits that the said decision covers the issue in hand. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Should be poured in moulds or in small moulds weighing not over 75 pounds each. Zinc shall be minimum 85%. It is not the case of the Revenue that the zinc content in the goods imported by the appellant is less than 85%. To that extent, the adjudicating authority concedes the factual position. The only point picked up by the adjudicating authority to hold that the goods are liable for confiscation, is that the weight of the slab imported by the appellant is 500 kgs. It can be seen from the above reproduced ISRI definition of zinc dross shelf that the zinc scrap can be poured in moulds or in small moulds weighing 75 kgs each. This definition would clearly indicate that an importer can import zinc dross shelf poured in moulds, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the goods are not, seal they would fall under any other grade. In as much as, all the grades are freely importable and attract the same rate of duty, no intention can be attributed to the appellant to mis-declare the goods as seal grade. They have also contended that at the very opinion that zinc dross is not of seal grade, the chemical examiner has not given any reasons as to why the same does not have the characteristics of seal grade. He has also not given any opinion as to under which category the zinc dross falls. As such, they have strongly contended that the chemical examiner report is in-complete and un-reliable. It is also seen that the appellants have made a request for retest of the samples which does not stand accepted by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order and allow the appeal with consequential relief to the appellants. 9. It can be seen that the above reproduced judgment of the Tribunal clearly covers the issue in favour of the assessee. Accordingly, we hold that the classification of the goods imported would fall under category of 79020010 and there is no violation nor there is misdeclaration in order to hold that the goods are liable for confiscation under Section 111(d) of the Customs Act, 1962. 10. In view of the foregoing, we set aside the confiscation as ordered by the adjudicating authority and also set aside the penalty imposed. The appeal is allowed and the impugned order is set aside. ( Pronounced in Court on 10.3.2017 ) - - TaxTMI - TMITax - Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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