TMI Blog2024 (1) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... per the request of the appellant), thereby rendering them as scrap. Scrap so generated after mutilation will be cleared on payment of appropriate Customs duty as per the values declared by the appellant in the documents presented before the authorities. The impugned order is set aside along with confiscation and imposition of penalty and redemption fine - Appeal allowed. - Hon ble Mr. P. A. Augustian , Member ( Judicial ) And Hon'ble Mrs. R. Bhagya Devi , Member ( Technical ) Mr. Asher Revi Job, Advocate for the Appellant Mr. P. Saravana Perumal, AR for the Respondent ORDER Per P. A. AUGUSTIAN : 1. The Appellant had imported Heavy Metal Scrap (HMS)and filed B/E for clearance of the same on 19.01.2010. On examination, it is found that the goods are of assorted size and cannot be considered as HMS scrap. However Appellant vide letter dated 10.02.2010 stated that the goods imported as scrap which can be used for the purpose of melting only. They have requested for release of the goods or allow mutilation of the goods so as to use them as scrap. However the request was denied on the ground that request for mutilation was made only after the offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the respondent and the foreign supplier, statement that and been made and other material of records, found that respondent had sought to clear serviceable material as scrap . In the above circumstances, only request for mutilation was denied whereas in the present case, the goods were imported as per the Import policy supported by the certificate issued by accredited agency. Learned Counsel also drew our attention to the findings of this Tribunal in the matter of M/s Mangalam Alloys (2020 (374) E.L.T 810 (Tri. Mumbai) reproduced below: 4. Heard both sides and perused the records of the case. Brief point to be decided in this case is as to whether heavy melting scrap HMS imported by the appellants can be classified as serviceable parts and thus, exemption availed needs to be denied. On the basis of the examination conducted at the time of clearance, department opined that the impugned goods were secondary/defective/rejected stock, comprising of stainless-steel U and C channels of grade 410 (magnetic) and HR coils/strips of grade 410 (magnetic). The appellants submit that the examination report was not given to them. Learned AR submits that as the show cause notice was wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ld Counsel also drew our attention to the finding of this Tribunal in the matter of Chandan steel vs. Commr.of Customs (Export Nhava Sheva)2019-369 ELT-1262, CC Chennai Vs Kamatchi Sponge Power Coprn. Ltd. (2016 (337) E.L.T 73), and Prince Fortified Vs CC Tuticorin (2019 (369) E.L.T 1228 (Tri.Chennai)). 5. Learned Counsel drew our attention to the finding of this Tribunal in the matter of M/s PAB Traders Vs CC, Cochin(2010(261)ELT 260(Tri. Bangalore), this Tribunal has considered the details of contract and after considering the certificate issued by the very same agency M/s. World Wide Logistics, allowed the appeal. 6. Learned AR reiterated the finding in the impugned order. Heard both sides. It is an admitted fact that as per the Import Policy, import of scrap is permissible by complying with certain conditions and the Appellant had complied with the prescribed conditions is not in dispute. The allegation regarding presence of assorted size of scrap were brought to the notice of the Appellant only when it was subject to inspection by the proper officer and there is no allegation that the Appellant had knowledge regarding presence of assorted size of panel having length ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... When we fail to understand how this can be the basis for concluding that the goods are not HMS, we are not able to find any cogent reason for discarding the pre-inspection certificate in toto. The jurisdictional High Court in the case of CC, Chennai v. Kamatchi Sponge Power Corpn. Ltd. - 2016 (337) E.L.T. 73 (Tri.-Chennai) in similar set of facts had upheld the order passed by Tribunal, which set aside confiscation and penalty. The relevant portion is reproduced as under : We also find that the Revenue preferred CMA against the Tribunal s order before the Hon ble High Court of Madras and the High Court of Madras in their order reported in 2014 (305) E.L.T. 377 (Mad.) upheld the above Tribunal s order and dismissed the CMA filed by Revenue. The relevant paragraphs of the Hon ble High Court of Madras order are reproduced as under : 7. As pointed out earlier, the only point that has to be decided in the present Civil Miscellaneous Appeal is as to whether the respondent is liable to pay duty on the basis of scrap materials or on the basis of usable things. 8. The entire argument put forth on the side of the appellant hinges upon the report filed by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has discussed the issue and given detailed findings. We also find that the test report relied by Revenue in a private laboratory is not the competent authority approved by CRCL or Customs. Further, even as per the test report, the goods were found to be secondary pipes which clearly confirms that they are scrap . We find that Commissioner (Appeals) taking into consideration of the goods clearly directed the department to mutilate and allow clearance as scrap. Therefore, Revenue s relying on Punjab and Haryana High Court decision in Aman Alloys Ltd. (supra) is distinguishable and not applicable for the reason that this jurisdictional High Court of Madras order which upheld the decision of this Bench of the Tribunal is binding on the Tribunal and prevails over. We also find that the appellants are registered Central Excise assessee having foundry for manufacture of billets, TMT bars as evident from the Central Excise registration and paying Central Excise duties on the final products. It is confirmed that appellant is not a trader of imported goods in the guise of scrap for trading purpose. Therefore, bona fide of the appellant is justified being actual user. We also find that pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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