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TMI Blog2017 (6) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... tuous, 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 redemption fine having concluded that the imported goods were indeed Heave Melting Scrap and therefore, not liable to confiscation? 2. In order to adjudicate upon the appeals, the following broad facts are required to be noticed. In this behalf, we would be adverting to the parties and facts referred to in C.M.A.No.522 of 2007, the issues and questions of law, being common. Consequently, the Company, i.e., Shree Ganesh Steel Rolling Mills Ltd., the appellant in C.M.A.No.522 of 2007 will be referred to as the "appellant company". Mr.Ashok Saraf, the appellant in C.M.A.No.523 of 2007, will be referred to by his name. Collectively, Shree Ganesh Steel Rolling Mills Ltd. and Ms.Ashok Saraf, its Managing Director will be referred to as the "appellants". 2.1.It appears that the appellant company had imported 7544 Metric Tons of Steel Products, which included 4506 Metric Tons of non-alloy steel re-rollable scrap; 2900 Metric Tons of Heavy Melting Scrap (in short "HMS") in the form of plate cuttings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Commissioner to consider, as to whether or not, the appellants ought to be allowed the benefit of Notification No.83/90 r/w Board Circular or Board Letter No.528/163/93-Customs (TU) dated 04.01.1994, as indicated to the authorities vide APDO No.6/94. The Tribunal, however, sustained the findings of the Commissioner with regard to valuation, confiscation and, redemption of fine and penalty. These findings are contained in paragraph Nos.41 to 45 and 48 of the impugned judgment. 2.11.In sum, the Tribunal remanded the matter to the Commissioner for considering, as to whether, in terms of the Board's instructions, it ought to be allowed, to use the subject scrap for melting purpose, albeit, under the supervision of jurisdictional Central Excise Authorities, provided the appellants furnished an end-use bond. The exact contours of the remand are contained in paragraph No.46 of the Tribunal's order. For the sake of convenience, the same is extracted hereafter: "...46. In view of the above, we hold that in the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants to pay the differential duty on 2275 Metric Tons of re-rollable scrap, which was cleared provisionally, by the Customs Authorities, pursuant to a direction issued by this Court vide order dated 14.08.1998. 4.4.The Commissioner further sustained the direction of confiscation of 2275 Metric Tons of scrap, which was categorised as re-rollable scrap under Section 111(m) of the Customs Act, 1962. Imposition of redemption and penalty was also sustained by the Commissioner. In addition thereto, encashment of bank guarantee was directed by the Commissioner. 4.5. Aggrieved by the said order, the appellant carried the matter in appeal to the Tribunal for the second time. The Tribunal, by way of the impugned judgment and order, passed the following directions, which are contained in paragraph No.9. For the sake of convenience, the same are extracted hereinafter: "..9. In the result, it is ordered as under:- (a) The scrap in question weighing 2275 Mts shall be treated as melting scrap for the purpose of assessment of duty and the benefit of Notification No.11/97-Cus. Shall be given to the assessee. (b) The value of these goods shall be US $ 230 per MT in respect of 1600 Mts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings by way of a writ petition, albeit, without success. 8. We have heard the learned counsel for the parties and perused the records. 9. According to us, what clearly emerges is as follows: (i) The subject proceedings, both in the first round and in the second round, were confined to only that part of the imported consignment which comprised of 2900 Metric Tons of scrap. (ii) The respondents, even at the time of issuance of the show cause notice had treated only 675 Metric Tons out of 2900 metric Tons of scrap imported by the appellants, as HMS, based on the report of NML. (iii) The show cause notice, was thus, confined to the balance quantity, which is 2275 Metric Tons. It has been the respondents stand all through out, that 2275 Metric Tons of scrap was re-rollable scrap and not HMS, as was contended by the appellants. (iv) The respondents, thus, proceeded to claim differential duty and ordered confiscation, as also redemption on payment of fine and penalty. 9.1. The adjudication by the Tribunal in the first round vide order dated 12.12.1997, led, to the appellants, getting only one relief which too was based on an alternative argument propounded by it. The argum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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