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TMI Blog2018 (5) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... than 5 feet which could be treated as HMS; that balance quantity was only cut/end pieces of TMT rods. The Chartered Engineer vide a report dt. 17.12.2009 inter alia, opined that normal length of TMT varies from 11 to 12 metres of various diameter for use in civil construction; that length of the rods imported varies from 3 feet to 15 feet and are cut/end pieces of TMT rods of assorted sizes, hence they have very limited usage. Department took the view that 197.915 MTs of cut/end pieces of TMT rods are classifiable under CTH 72149990, hence not eligible for exemption and that the declared value is not true transaction value. Proceedings initiated against the importer culminated in issue of an adjudication order dt. 13.01.2010 reclassifying the goods under CTH 72149990, denying exemption notification, rejecting the declared price and confiscation of the goods with option to redeem them on payment of fine of Rs. 2 lakhs under Section 125 of the Customs Act, 1962. Penalty of Rs. 2 lakhs was also imposed under Section 112 (a) ibid. On appeal, the Commissioner (Appeals) vide Order-in-Appeal No.41/2010 dt. 22.09.2010 (impugned order) reduced the redemption fine from Rs. 2 lakhs to Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defectives' when there is a specific entry for 'melting scrap of iron or steel' under Sl.No.200 of the said Notification. Under these circumstances, the impugned orders not permitting mutilation, ordering re-classification, determination of value and demand of duty based on Chartered Engineer value, confiscation and penalty are not justified. iv) In a proceedings initiated by SCN issued under Section 124 of the Customs Act,1962, there could not have been re-classification, determination of the value of the import goods and denial of exemption from duty under Notification No.21/2002-Cus. dated 1.3.2002. The impugned order to that extent is without authority of law and the same are required to be set aside. They rely on the judgement of Hon'ble Supreme Court in the case of Fortis Hospital Ltd. Vs CC (Import) - 2015 (318) ELT 551 (SC). v) Ld. Advocate also submitted that as per the CBEC guidelines, the matter in dispute is below the monetary limit of Rs. 10 lakhs beyond only which appeal can be filed to CESTAT. Hence department Appeal No.C/436/2010 requires to be dismissed on monetary policy. 3. On the other hand, on behalf of Revenue, ld. A.R Shri R. Subramaniyan submits that ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allic scrap as per internationally accepted parameter for such classification. The said agency is approved by DGFT. The appellant had filed Bill of Entry based on these documents. On examination, the Chartered Engineer has opined that out of 232.85 MTs, only 34.91 MTs of twisted rods were having less than 5 ft. Length and balance quantity of 197.915 MTs was cut/end pieces of TMT rods. Thus quantity of 34.91 MTs having less than 5 ft alone was treated as HMS by department and the balance quantity was reclassified as CTH 72149990 and thereby denied the benefit of notification. The basis for the Chartered Engineer to arrive at such conclusion is that in common parlance the length of TMT rods in the market is from 11 to 12 mtrs (33 to 36 ft) and the length of the rods imported range from 3 ft to 15 ft and are cut end pieces of assorted sizes. Since the cut ends do not have proportionate size they have very limited usage. When we fail to understand how this can be the basis for concluding that the goods are not HMS, we are not able to find any cogent reason for discarding the pre-inspection certificate in toto. The Jurisdictional High Court in the case of CC Chennai Vs Kamatchi Sponge & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected to pay duty on the basis of scrap materials and in view of the discussions made earlier, this Court has not found any acceptable force in the contention put forth on the side of the appellant and altogether the present Civil Miscellaneous Appeal deserves to be dismissed. 13. In fine, this Civil Miscellaneous Appeal deserves dismissal and accordingly is dismissed without costs. The ratio of the High Court decision and this Tribunal"s decision (supra) is clearly applicable to the present case as the issues are identical and also considering the fact that there is no misdeclaration by appellant as seen from the purchase order/sales contract and sales confirmation report and pre-shipment inspection certificate, wherein appellants have placed orders for supply of 1000 MTs of HMSS, and imported the said goods and cleared in terms of purchase order. The Commissioner (Appeals) has discussed the issue and given detailed findings. We also find that the test report relied by Revenue in a private laboratory is not the competent authority approved by CRCL or Customs. Further, even as per the test report, the goods were found to be „secondary pipes" which clearly confirms that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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