TMI Blog2019 (7) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... no evidence on record to show that the drill bits, weighing 1107 kgs and assessed as such, would not have been used for that purpose. Accordingly, the classification ordered by the lower authorities cannot be faulted. Confiscation - redemption fine - penalty - HELD THAT:- There is no doubt that the goods that were imported were also drill bits but described as scrap. There is also no evidence that the drill bits were sold or disposed off as drill bits . From the unescapable fact that the undeclared drill bits constituted just a mere 5% of the total consignment, it would appear that there has been no deliberate attempt to mis-declare on the part of the importer - the confiscation of the goods under section 112(m) of Customs Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e new and serviceable, that are the subject of this proceedings. 2. Learned Counsel for the appellant objects to the finding that the drill bits , that had been uncovered, were new and that they are actual users who procure scrap for recycling to extract tungsten carbide and alloy steel . Furthermore, they had sought permission for mutilation of the imported goods which had been denied. It is submitted by the Learned Counsel that the pre-shipment inspection certificate issued from the place of shipment and the letter of supplier make it clear that the goods are indeed melting scrap. Relying upon the definition of scrap in note 8A of section XV of First Schedule to the Customs Tariff Act, 1975 and the absence of any opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not conform to standards of the U.S. Federal Government, they are in fact not earplugs and not usable as such. The fact that the earplugs did not conform to a particular standard does not render them unusable as such goods, or unsuitable for such use. All that it shows is that in the particular country to those standards of which they cannot conform, they cannot be put to such use. There is nothing to prevent that they are being capable of use as such elsewhere. This, in fact, has been the stand that manufacturer of these goods took. They were manufactured by Moldex Metric Inc, California. That company, in its certificate dated 15-9-1992 signed by Albert Mintz, Vice President has taken the stand that the goods did not conform to United ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er heading relating to scrap, but as parts of plastic under chapter 34 of the tariff; nor is there any claim that the goods were in fact put to use as scrap, and not sold or made use of as earplugs. Allegation in the show cause notice that it was as a result of the adjudication again that the importer faced as a result of an earlier import in which goods were correctly described, that they were ambiguously described in the present consignment that has not been disputed. That being the case, the goods were in fact earplugs and deliberately declared to be plastic moulded cups, so as to mislead the authorities into not treating the goods as consumer goods. The view of the Collector that they are consumer goods because they were not parts but t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdered by the lower authorities cannot be faulted. 5. There is no doubt that the goods that were imported were also drill bits but described as scrap. There is also no evidence that the drill bits were sold or disposed off as drill bits . From the unescapable fact that the undeclared drill bits constituted just a mere 5% of the total consignment, it would appear that there has been no deliberate attempt to mis-declare on the part of the importer. Accordingly, confiscation of the goods under section 112(m) of Customs Act, 1962 and the imposition of redemption fine, along with penalties, does not appear to be sustainable in law. Therefore, setting aside the confiscation, redemption fine and penalty the impugned order is mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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