TMI Blog2017 (10) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... such scrap against the heavy melting scrap found less would be illogical as the scraps are of different kinds with different values and rates of duty. The contention of the appellants that surveyor report should be accepted as evidence in absence of testing of goods are also not convincing. In the present case, there is clear misdeclaration of quantity of distinctly different types of scrap having different values - Confiscation upheld - the quantum of redemption fine and penalty reduced. Appeal allowed in part. - C/107-108/2009 - A/12793-12794/2017 - Dated:- 22-9-2017 - Dr. D. M. Misra, Member (Judicial) And Mr. Devender Singh, Member (Technical) For the Appellant : Shri S. S. Mehta, CA For the Respondent : Ms. Nitina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Value (as per panchanama) (in Rupees) 1. Lead Scrap Nil 4.780 4.780 4,66,050.00 2. Copper Scrap Nil 17.171 17.171 74,69,385.00 3. Copper Wire Scrap (Birch Gr) 27.250 30.080 2.830 12,16,900.00 4. Brass Scrap 4.380 4.988 0.608 1,48,960 5. Aluminium Scrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment was not done in the presence of importer, and was done in the presence of CHA as is clear from the panchnama. He also relied upon the report of the surveyor, arranged by appellant No. 1 and contended that since the show cause notice does not refer to any test report given by the Government Laboratory, in absence of which the surveyor report as evidentiary value. He referred to para 6 of the surveyor report to contend that the lead scrap was not pure lead scrap and after removal of impurities the lead scrap would be around 0.50 MT. He further pleaded that the confiscation of goods was not justified and that fine and penalty imposed were excessively high. He relied upon the decision of this Tribunal in the case of Lucky Steel Industrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Copper Scrap, Copper Wire Scrap, Brass Scrap and Aluminium Scrap. Hence, the adjustment of such scrap against the heavy melting scrap found less would be illogical as the scraps are of different kinds with different values and rates of duty. We are also not convinced by the contention of the appellants that surveyor report should be accepted as evidence in absence of testing of goods. We find that the authorised representative of the appellants was present at the time of examination of the goods and did not raise any objection at any stage. Hence, purported report of the surveyor which has been arranged by the appellants on their own after clearing the goods has no value in the eyes of law. In this regard, we agree with the findings giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is sought is devoid of any merit. Consequently, their request for cross-examination is rejected. Similarly, asking for samples and its testing after agreeing with the facts regarding excess goods/mis-declared goods recorded in the panchnama that was drawn in the present of two independent panchas and authorised representative of CHA appointed by the noticee themselves does not serve any purpose not it is acceptable at this stage. Consequently, this plea is also dismissed. The noticee has also sought to rely on a certificate dated 10.10.2007 issued by M/s Inspectorate Griffith India Pvt. Ltd. And on this basis, they have sought to contest the quantum of excess goods re corded in the seizure panchnama. However, considering the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner. We agree with the legal reasoning given by the adjudicating authority in this regard. However, we find that the amount of redemption fine and penalty of Appellant No. 1 are on the higher side considering the facts and circumstances of the case. Accordingly, in the interest of justice, we reduce the redemption fine to ₹ 15 Lakhs, and reduce the penalty on Appellant No. 1 to ₹ 5 lakhs. 9. As far the penalty on Appellant No. 2, we find that the Hon ble Gujarat High Court in the case of Jai Prakash (supra) has held that once the firm has already been penalized, separate penalty cannot be imposed upon the partner. In view of the same, the penalty on Appellant No. 2, who is partner in the Appellant No. 1, is set aside. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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