TMI Blog2018 (5) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... id paragraph. No purpose would be served by remanding the matter back to the original authority as opined by Member (Technical). In view of the majority decision, it is held that the goods can be released provisionally to the appellants as per terms and conditions enunciated in Para 10 of the order of Member (Judicial) and the appeals are not required to be remanded back to the original adjudicating authority. Appeal disposed off. - C/60450, 60452/2017-DB - Final Order No. 61965-61966/2018 - Dated:- 26-3-2018 - Mr. Ashok Jindal, Member (Judicial) and Mr. Devender Singh, Member (Technical) Shri Saurabh Kapoor, Advocate for the Appellant(s) Shri Harvinder Singh, A.R. for the Respondent(s) ORDER Per: Ashok Jindal The appellant has filed these appeals against the following order sin the impugned orders:- In Appeal No.C/60450/_2017 List of steel products under mandatory Bureau of Indian Standards certification. Indian Standard number Title ITC (HS) Code Date of coming into force of the product in the standard to the extent given below ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the declared invoice value, without any prejudice to the right of the department to issue the show cause notice on any aspect including valuation. (ii) The representative samples of the impugned goods mentioned in Table -1 2 excluding MS sheet cutting/strips/slits (VR) mix coated/ plated width more than 600mm and HSM may be taken to ascertain the nature of the goods vis-a-vis IS 513 and the goods shall be mutilated so as to render them scrap in such a manner so that they cannot be used as such except for melting in accordance with definition of scrap in Section Note 8(a) of the Customs Tariff and subject to Para 21 of the order. (iii) The importer shall furnish a bond equal to the reassessed value to bind himself to pay in case of demand the differential duty, fine, penalty or interest as may be leviable on such goods, if these are held to be other than scrap. (iv) The Assistant Commissioner (Shed), CFS OWPL, Ramgarh, Ludhiana shall issue a Detention Memo for the goods from the period for which they remained a detained in terms of regulation 6(1)(e) of Handling of Cargo in Customs Area Regulations, 2009 (HCCAR, 2009). 2. As the issue in both the appeals is id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said findings and conclusion was based merely on the basis of the visual examination of the Chartered Engineer. He has arrived at the said conclusion of the weight, without even segregation or weighment of the goods at the time of inspection, despite the request of the appellant to communicate the criteria of segregation. He further submits that in respect of bill of entry No.8155288 dated 11.01.2017, the Chartered Engineer Shri Rajesh John reported that out of the total declared weight of 159.75 MTs the MS Sheet cutting/strips/slits (CR) missed coated/ plated width more than 600mm (secondary and defective) weighing 15.75 MTs were found, MS Sheets cutting/strips/slits (CR) width less than 600mm (secondary and defective) weighing 72MTs and the balance material was reported as scrap. The said report is also on the basis of eye estimation without obtaining any market opinion or even segregation and weighment of the material, despite the request made by the appellant. He further submits that on the said findings the goods imported were detained and later on seized and assessed provisionally. The appellant, aggrieved from the said reports, had requested for re-examination by another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be 2 feet by 5 feet. The said declaration as per ISRI has been directed by the Commissioner vide standing order dated 30.05.2013 and the same has not been accepted by the adjudicating authority which is binding on them. 5. He further submitted that the report of the Chartered Engineer who reported the goods to be secondary and defective and the conclusion and ascertainment of quantity has been based on the visual examination and without segregation and weighment of the goods. It is pertinent to mention that the Chartered Engineer have reported the quantity of the material imported under various specifications merely on the basis of the visual examination and without segregation and weighment of the same. The report of the Chartered Engineers Shri Anil Soni and Shri Rajesh John cannot be relied upon as they have failed to consider the criteria laid-down under the ISRI for import of scrap. Therefore, for the failure of giving any valid reason for imported scrap not falling under the said criteria, the opinion classifying the goods under the category of secondary and defective sheets, cannot be accepted. Further, the department has not accepted the conclusion and report of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rime sheets. The said fact is evident from series of the dates, wherein the order-in-original was passed on 12.04.2017 and the samples were sent for testing after passing of the said order, therefore the findings of the adjudicating authority are premature. He further submits that the findings of the adjudicating authority classifying the goods as cold rolled sheets and attracting mandatory compliance of BIS is based on the test reports obtained after passing of the order. Moreover, the said test have been conducted without following the procedure prescribed under the BIS therefore, the said test report cannot be relied on. However, to the contrary the NISST being a BIS certified laboratory has held that the Heavy Melting scrap are as per ISRI specifications. The observation of the adjudicating authority is on the basis of assumption and presumptions that the material imported in the guise of scrap can be re-used by the appellant. In view of the above, he prays the impugned orders are to be modified and the Condition No.2 in the impugned orders are required to be deleted. 6. Ld. AR opposed the contention of the Id. Counsel and submits that before the Hon'ble High Court, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led, and electrical sheet containing over 0.5 percent silicon. 8. On going through the report of Chartered Engineer, Shri Anil Soni, dated 17.02.2017, out of the total quantity of 132.895 MTs declared scrap, CR sheets/ Strips/ Slits of width less than 600mm (secondary and defective) weighing 60.00MTs, CR Sheets. Strips/ Slits of width more than 600mm weighing 05.00 MTs, Coated plated sheets/ Strips/ Slits (secondary and defective) weighing 02.00 MTs and the balance material weighing 65.895 MTS was reported to be Heavy Melting Scrap and only 7 MT can be said to be not as per ISRI Code-207. The Standing Instruction allows the variation in size upto 10% of the total quantity. Admittedly, in respect of Bill of Entry No.8414179 dated 02.02.2017, the variation is less than 10%. Further, with respect to Bill of Entry No.8155288 dated 11.01.2017, as per report of Shri Rajesh John, out of the total declared weight of 159.75 MTs the MS Sheet cutting/strips/slits (CR) missed coated/ plated width more than 600mm (secondary and defective) weighing 15.75 MTs were found, MS Sheets cutting/strips/slits (CR) width less than 600mm (secondary and defective) which is also less than 10%, as per St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The said order of mutilation stands the harassment to the trade and against the Standing Instructions No.02/cus/2013 dated 30.05.2013. 9. We further find that the adjudicating authority has classified the goods as Cold Rolled sheets therefore, needs mandatory compliance of BIS is based on the test reports obtained after passing of the order. The said test reports have been conducted without following the prescribed procedure as per BIS, whether a particular material is cold rolled or hot rolled, tests including Bend test, Cupping test, Rockwell test, Tensile test etc. are required to be conducted in addition to chemical composition as per IS-513 of BIS. As the said tests have not been conducted by the said laboratory is contrary to the NISST holding that material imported are Heavy Melting scrap as per ISRI specifications. In that circumstance, we hold that mutilation of the impugned goods are not required. 10. In view of the above discussion, we modify the impugned orders as under:- (i) The goods shall be assessed to duty provisionally on the basis of the declared invoice value, purely for the purpose of provisional release of goods only, without any prejudice to the rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 iv) Melting Scrap 65.895 3 Varun Chandok 01.03.17 He opined that he could not Rule out any possible re-use of this material (para 4, page 4), that as the consignment is in a mix condition and unable to opine neither for the total contents of scrap nor for any type of material (para 1, page 5) that commercial marketability of the gods exceeding 2 feet by 5 feet, if found during segregation depends upon its market demand type of end use (point 5 page 5). Therefore, largely the report of Sh. Varun Chandok remained inconclusive. 3 Anil Kumar Soni 07.03.17 i) CR sheets/strips/slits width less than 600 mm (Second defective) 60 ii) CR sheets/strips/slits width more than 600 mm (Second defective) 05 iii) Coated/plated CR sheet (Second defective) 02 iv) HMS of MS sheet curtns 65.895 (ii) For B/E 8414179 dt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... content of the impugned material. 131 I find that the goods were also tested for carbon content as per the directions of the adjudicating authority in his order dt.12.4.2017. On testing of the goods at the Research and Development in Bicycles and Sewing Machines (RDBSM) laboratory, Ludhiana, the material in question has been found to be low carbon steel, which attracts mandatory BIS certification. However, the appellant have not produced any evidence before this Tribunal or Commissioner (Appeals) that supplier of goods was granted such certification under FMCS Scheme or the imported goods were as per Indian Standard of Certification IS513 14. I also find that the appellant had tried to mislead the Tribunal by wrongly submitting before the Tribunal that the Research and Development in Bicycles and Sewing Machine laboratory is an non-BIS approved laboratory whereas on the BIS website, which is in public domain, it is listed as BIS approved laboratory. The laboratory is an UNDP-UNIDO assisted entity of Punjab Govt. 15. I find that both the NISST clarification dt.22.6.2017 and the report dt.18.4.2017 of the RDBSM laboratory, Ludhiana have a direct bearing on the outcome of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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