TMI Blog2018 (5) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... y melting scrap and on receipt of goods, it is found that the some quantity of rerollable scrap is received then it does not amount to misdeclaration - confiscation and penalty not warranted. In view of the majority order, all the three impugned orders are set aside and all the three appeals are allowed. - Appeal No. C/60038-60040/2013-DB - A/62286-62288/2018-CU[DB], IO No. 42-44/2017 dated 12.12.2017 - Dated:- 2-5-2018 - Mrs. Archana Wadhwa, Member (Judicial) And Mr. Devender Singh, Member (Technical) Shri Sudhir Malhotra, Advocate for the Appellant(s) Shri V.K. Tehran, A.R. for the Respondent(s) Per : Archana Wadhwa All the three appeals are arising out of the same impugned order passed by the Commissioner (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that all the documents are declaring the goods as Heavy Melting scrap and inasmuch as the appellant has procured the consignments on high see sale basis, he filed the bills of entry based upon the description of the goods in the said documents. In such a scenario, to impose redemption fine and penalty, is not justified. 5. However, the Commissioner (Appeals) did not find favour with the above contention of the appellant and rejected their appeal. 6. After hearing both the sides duly represented by Shri Sudhir Malhotra, ld. Advocate for the appellants and Shri V.K. Tehran for the Revenue, we note that admittedly the consignment was purchased by the appellant on high see sale basis and all the documents describe the goods as Heavy Melti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving that the order was placed for Heavy Melting scrap only and the foreign supplier has sent Heavy Melting scrap only, the presence of re-rollable scrap will not convert the consignment into anything other than Heavy Melting scrap, thus justifying confiscation of the same. 8. In view of the foregoing, we find no merit in the Revenue s stand and accordingly set-aside the impugned orders and allow all the three appeals. (Order dictated and pronounced in the court) Devender Singh Member (Technical) Archana Wadhwa Member (Judicial) PER: DEVENDER SINGH 9. Having gone through the draft order of Hon ble Member (Judicial), I write separate order. 10. In all three appeals, the declared quantity of the HMS a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on examination of goods before their clearance. I find that the adjudicating authority has given the finding that the party has admitted to committing the offence and do not want show cause notice or personal hearing. As the goods have been mis-declared in respect of their description which has a direct bearing on the rate of duty and value, the same are correctly held liable for confiscation under Section 111 (m) of the Customs Act, 1962. I also find that considering the revised assessable value of the goods and differential duty, redemption fine in these cases is on the higher side, the same is therefore reduced to ₹ 1.50 lakh in each appeal. The Tribunal decision in view of Kuber Casting Pvt.Ltd.-2016 (339) ELT 264 (Tri.- Chan) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1.50 lakh in each case for redeeming the goods and penalty of ₹ 50,000/- in each case is imposable, as held by Member (Technical); or (2) Whether in the facts and circumstances of the case, the goods which were purchased on high sea sale basis and were declared as heavy melting scrap in the documents of high seal seller, are not mis-declared and hence not liable to confiscation and no penalty is imposable, as held by Member (J)? (DEVENDER SINGH) MEMBER (TECHNICAL) (ARCHANA WADHWA) MEMBER (JUDICIAL) PER: ANIL G. SHAKKARWAR 14. Heard on difference of opinion. 15. Heard learned AR for the Revenue. He submitted that the appellant declared scrap as heavy melting scrap. However, on examination, 50% of the con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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