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TMI Blog2023 (10) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... and scrap. In the present case, the said SEZ units sold imported 'Plastic Stickers whether or not printed, embossed or impregnated' classifiable under 39199010 of the Customs Tariff Act and supplied to M/s Alfa Industries and M/s Anshita Trading Corporation (hereinafter referred to as 'DTA unit'). The Customs officers carried out the investigation and found that the said materials were plastic waste and scrap classifiable under Heading (CTH) No. 39151909 of the Customs Tariff Act and restricted items in the policy. After the detailed investigation a show casus notice dated 07.02.2005 was issued to DTA units, SEZ Units and the partners of the SEZ units. The show cause notice also alleged the undervaluation of the goods. In adjudication vide Order-In-Original dated 31.01.2007 the adjudicating authority confirmed the demand of duty alongwith interest and also imposed penalties. He also confiscated the goods and imposed redemption fine for violation of the Exim Policy and misdeclaration in terms of value and description of goods. Being aggrieved by the above Order-In-Original appellants preferred appeals before the CESTAT and the Tribunal vide Final Order dated 25.08.2015 remanded the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen in isolation and in fact the report of CIPET has primacy in this regard. It is settled law that in such scenarios the report of the CIPET has to be given due consideration as the CIPET is a specialized laboratory which specializes in dealing with various form of plastics and thus the opinion of the CIPET with regard to Plastic Materials is incontrovertible. He placed reliance on the decisions of Hon'ble Gujarat High Court in the case of Union of India Vs. Oswal Agricomm Pvt. Ltd. -2011(268)ELT 21 (Guj.). 2.2 He further submits that the Learned Adjudicating authority has gravelly erred in stating that the CIPET report and the report by the Customs Laboratory state the same thing and that both Report incriminate the present appellants. In fact the said conclusion of Ld. Adjudicating authority has failed to take into account the fact that the CIPET Report is completely at variance from the report by the Customs Lab. 2.3 He also submits that in relation to aspect of Composition of the sample, the Customs Lab has opined that the same are 'high density polyethylene, low density polyethylene, polystyrenes, polyurethane, polystyrenes laminated with polyethylene film' and in complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and /Or Plastic Scrap /Waste and the said letter also requested the CBEC should clarify this issue so as to established a cohesive practice with regard to situations as enumerated in the said communication. The aforesaid letter clearly shows the confusion that exists in the respondent department with regard to the policy and interpretation of provisions with respect to Plastic Stickers and Plastics Scrap/ Waste. This in fact goes on to show that the utter confidence by which the department has proceeded with against the present appellants is in fact based on conjectures and suppositions. This is patently manifested in the fact that while the Customs Laboratory declared the confiscated goods to be Plastics Scrap, the CIPET on the other hand declared that confiscated goods were in fact plastics stickers and not plastic waste. Moreover the report by the CIPET also established that the goods in question were not hazardous in nature which in turn contradicts the report of the Customs Laboratory. 2.6 He also submits that the confiscated goods are not in existence as the same had been completely destroyed in a fire in the concerned warehouse. In the letter dated 25.02.2005 the Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifiable under 39 19 as declared by the appellant or classifiable under Customs Tariff Heading 39 15 as plastic waste and scrap claimed by the Revenue. 2) Whether valuation of the aforesaid goods is correct or otherwise and enhancement of the value by the Customs Authority is right or wrong. 4.2 As regard the issue of classification, we find that the appellant have cleared the plastic stickers and declared the same under CTH 39 19 9010 of the Customs Tariff Act. The dispute arose on the nature of the product for which the tests were conducted one by CIPET and other by customs laboratory. In the first Adjudication order the Adjudicating Authority relied upon the report of customs laboratory and confirmed the demand holding that the goods classifiable under 39 15 1909 as plastic waste and scrap which is prohibited/restricted goods. Thereafter, on the appeal, the Tribunal has remanded the matter vide final order No. A/11348-11355/2015 dated 25.08.2015, wherein the following order was passed: "These appeals are arise out of a common order and therefore al are taken up together for disposal. 2. The relevant facts of the case in brief are that M/s Lucky International, M/s Anshita E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ASEZ, Gandhidham forwarded samples for testing of Plastic Stickers and Chemical Analysis to the Director of the CIPET Extension Centre (Ahmedabad). The Deputy Commissioner, Customs Kandla, KASEZ by letter dated 17.11.2004 forwarded the test report of CIPET to the Deputy Commissioner (SIIB), Custom House, Gandhidham. 6. It is seen that in the test report, CIPET observed that the sample is "cut pieces of clear film with paper stickers". The Adjudicating authority proceeded on the basis of report of the Customs Laboratory. We find that the Hon'ble Gujarat High Court in the case of Oswal Agreecomm P Ltd. (Supra) on the identical situation observed that report of CIPET, Ahmedabad cannot be ignored. In that case, the issue before the Hon'ble High Court is whether test report submitted by the Custom House laboratory Kandla has any overriding effect on the reports submitted by the CIPET, Ahmedabad and Chennai. The Hon'ble High Court observed as under: 42. We have also noticed Clause (vii) of Public Notice No. 392(PN)/92-97, dated 1-1-1997, which relates to clearance of imported plastic waste/ scrap. Therein it has been specified that "the customs authority shall for this pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... result since the goods was found as stickers, the goods should be classified in the form it was found i.e. sticker, which is correctly classifiable under 39 19 9090. 4.4 We find that in view of the Hon'ble Gujarat High Court judgment in the case of Oswal (supra) as well as the clear observation of the Tribunal in the earlier remand order now the entire reliance can be made on the CIPET report only and no reliance can be made on customs laboratory report. Therefore, in view the above clear report of the CIPET the goods cleared from appellant's SEZ is a plastic sticker and correctly classifiable under Customs Tariff Heading 39 19 9010. 4.5 As regard the second issue, whether the goods are undervalued or otherwise, we find that firstly on our above observation on the classification the value declared by the appellant are correct. Moreover, the Adjudicating Authority has alleged that due to related person, the value cannot be declared by the appellant cannot be accepted and accordingly the same was enhanced. We find that firstly the SEZ unit and the buyer of the goods are not related merely because one is proprietor concerned and other is partnership concerned. In a partnership firm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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