TMI Blog2019 (12) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... goods before clearance. Chartered Engineer s examination was also not ordered. This being the factual milieu, Department cannot reclassify the goods unilaterally on the basis of the examination report of officers alone. Technical opinion given by the pre-inspection certificate and by M/s. Alloys and Metal Test Services, cannot be disregarded. Also the fact that all the shipping documents describe the goods as steel melting scrap only cannot be denied. Under such circumstances, denying the classification and the benefit of exemption are not tenable. For the same reason, the department has not made its case for redetermination of the value of the impugned goods for the purpose of assessment. The declared classification and valuation cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceable material. Appellants waived show cause Notice. A personal Hearing was held on 14- 07-2010. Commissioner passed Order-in-Original No.40/2011/CC(I), JNCH dated 15.07. 10 was passed confirming differential duty of ₹ 7,62,622 and imposing redemption fine of ₹ 10,00,000 and penalty of ₹ 4,00,000. The same is under challenge. 2. Learned counsel for the appellants Shri T. Vishwanathan submitted that all documents viz., commercial invoice, bill of landing and sale contract with the supplier, described imported goods as 'stainless steel melting scrap, grade AISI 410';Pre-Shipment Inspection Certificate No. GCFE/SM0688/ 2010 dated 04.05.10 as required under ITC (HS) Foreign Trade Policy 2009- 2014 certify that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (for coils); therefore, the imported goods are correctly classifiable under Heading 72.04 of the Customs Tariff and are eligible for exemption under Notification No.21/02-Cus; the entire consignment was melting scrap only; 'scrap' bought as stock lot is bound to contain articles in different shapes and forms including some serviceable material which are considered as scrap in the exporting country; it does not mean that the entire lot will be considered not as scrap or segregated within serviceable and scrap; Appellants are actual users and are regular importers of re-melting scrap; consignment imported has indeed been used in their furnace for manufacture of stainless steel ingots, flats and rounds; these satisfy the definition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid by the Appellants to their supplier; there is no allegation of extra payment to the supplier over and above the invoice price; thus, genuineness of the transaction value is also not doubted; therefore, there is no occasion to invoke Rule 10 of the Customs Valuation (Determination of Value of the Imported Goods) Rules, 2007; hence, the transaction value in the present case has to be accepted for the purpose of customs duty in terms of Section 14(1) of the Customs Act, 1962 read with Rule 3(1) of the Customs Valuations Rules, as held by the Hon'ble Supreme Court in Eicher Tractors Ltd - 2000 (122) ELT 321; enhancement of the value based on the price prevailing in international market (based on London Bullion Metal Exchange) is incorr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given to them. Learned AR submits that as the show-cause notice was waived by the appellants, the examination report could not be given to them. The appellants further submitted that no examination by a Chartered Engineer was conducted; pre-shipment inspection certificate and certificate issued by M/s. Alloys and Metal Test Services, Mumbai were ignored. Also, the request of the appellants for mutilating the goods before clearance was also not allowed. It is the contention of the appellants that by nature steel melting scrap is likely to have some defective secondary parts or articles. However, the supplier treated the same as scrap only. It is a matter of fact that the said scrap was utilised in their factory for melting only. Therefore, d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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