TMI Blog2017 (6) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... able scrap. Appeal dismissed - decided against appellant. - C.M.A. Nos. 522 & 523 of 2007 - - - Dated:- 21-4-2017 - Rajiv Shakdher And R. Suresh Kumar, JJ. For the Appellant : Mr. C. Saravanan for Mr. P. Rajkumar For the Respondents : Mr. A. T. Pramod Kumar Chopda JUDGMENT [ Judgment of the Court was made by Rajiv Shakdher, J. ] 1.These appeals are directed against the judgment and order of the Customs, Excise and Service Tax Appellate Tribunal (in short the Tribunal ). 1.1.The appeals were admitted on 28.02.2017 and the following questions of law, were framed for consideration of this Court: (i) Whether the appellant is liable to pay redemption fine of ₹ 20,00,000/- under Section 125 of the Customs Act, 1962? (ii) Whether the first respondent was justified in coming to a conclusion that as far as valuation, levy and redemption fine of 20,00,000/- with penalty fine of ₹ 2,00,000/- on the Managing Director of the Company is infructuous, in view of the first respondent's earlier order dated 12.12.1997 made in Final Order Nos.3259-3269/1997? (iii) Whether the first respondent was justified in upholding the levy of redemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms (in short, Commissioner ), after considering the stand taken by the appellant company, in the reply and after hearing its representative, passed an order-in-Original dated 31.07.1977. 2.9.The Commissioner, by virtue of the said order, came to the conclusion, that the stand taken by the appellant company, that 2275 Metric Tons of scrap was re-rollable scrap was not tenable and the same was rejected. Resultantly, the Commissioner held the appellant company guilty of making incorrect declaration and, consequently, directed confiscation of 2275 Metric Tons of scrap under Section 111(m) of the Customs Act, 1952. Furthermore, the Commissioner permitted redemption of goods, upon payment of fine of ₹ 20,00,000/- (Rupees Twenty Lakhs only), in lieu of confiscation. In addition thereto, penalty in the sum of ₹ 2,00,000/- (Rupees Two Lakhs only) each, was imposed on the appellant company and its Managing Director, Mr.Ashok Saraf, who is the appellant in C.M.A.No.523 of 2007. 2.10.The appellant company being aggrieved by the said order, carried the matter in appeal to the Tribunal. The Tribunal vide judgment dated 12.12.1997, disposed of the appeals, by directing the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider the matter afresh in the light of the observation made by the appellate tribunal as indicated in paragraph-46 of the order in accordance with law. It would be open to the parties to produce the relevant materials before the Commissioner.... 4. The appellants, admittedly, did not carry the matter further and rested their case with the direction of remand, issued by the Tribunal via paragraph No.46 of the order dated 12.12.1997. Accordingly, the Commissioner passed a fresh order in the matter, though, in passing the order, he, evidently, travelled beyond the scope of the remand. 4.1.The Commissioner construed the order of Tribunal as a direction for de-novo proceedings and thus, returned the following finding in its order dated 23.08.2005. 4.2. The Commissioner, while passing the order held that the entire scrap amounting to 2275 Metric Tons was only re-rollable scrap and therefore, the appellants were not entitled to the benefit of end use certificate furnished by them. 4.3.Accordingly, the Commissioner directed the appellants to pay the differential duty on 2275 Metric Tons of re-rollable scrap, which was cleared provisionally, by the Customs Authorities, purs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the subject scrap was melting scrap, the other directions, to which, he made a reference could not have been passed by the Tribunal via the impugned judment and order. 7. On the other hand, relying upon the records and the impugned judgment passed by the Tribunal, it is Mr.T.Pramod Kumar Chopda's contention that remand by the Tribunal, in the first round vide order dated 12.12.1997, was qua a limited aspect. 7.1.It is the learned counsel's contention that the only aspect which the Commissioner was required to go into was: as to whether or not, the appellants were entitled to the benefit of the confiscation Notification No.83/90 based on the end use certificate, which they had been directed to furnish. Since, the appellants had furnished a certificate, the benefit of Notification No.83/90 was extended to them. According to the learned counsel, in so far as the other findings are concerned, (which were recorded by the Tribunal, in its earlier order dated 12.12.1997), they had attained finality, specially, after an attempt had been made to assail the said findings by way of a writ petition, albeit, without success. 8. We have heard the learned counsel for the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned judgment. 10. These being the factual aspects, which have emerged from the record, we are not impressed by Mr.Saravanan's contention that since 2275 Metric Tons of scrap was treated as HMS, no confiscation could have been ordered or other directions, such as redemption and payment of fine and penalty could have been issued. 10.1.According to us, it is quite clear that the Tribunal, both in the first and in the second round, returned a finding of fact that an incorrect declaration had been made inasmuch there was misdescription of the subject goods. The only concession, that the appellants obtained was with regard to the end use benefit provided via the Notification No.83/90, and since the appellants had furnished the end use certificate, which indicated that they had ultimately used 2275 Metric tons of scrap, as prescribed, that benefit was given to the appellants. The net effect of the said benefit was that 2275 Metric tons of scrap was amenable to a concessional rate of duty of 5% as against 20%. The subject goods were, thus, as held re-rollable scrap. 10.2. These, according to us, are findings of fact and therefore, cannot be disturbed by us, at this stage. If ..... X X X X Extracts X X X X X X X X Extracts X X X X
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