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TMI Blog2024 (6) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... 79012090 from Bangladesh, vide nine Bills of Entry between January 2014 to December 2015. Samples were drawn at the time of import by the Revenue to ascertain the percentage of Zinc content vide Test Memo No. 346 dated 12/03/2015. The Bills of Entry were assessed provisionally based on LME price as applicable on the date of filing of the Bill of Entry. It is the contention of the Revenue that the CRCL Test Report indicated the actual percentage of Zinc content to be more than as declared by the importer. The assessment was thus finalized by the Department. Accordingly, an Assessment Order No. 27/2017-18 dated 16 July 2017 was issued. A perusal of the said Order-in-Original (supra), issued for finalization of the assessment, directed the importer for payment of differential duty of Rs. 5,05,494/- along with interest as "assessable value based on test reports becomes higher than provisionally assessed value". 3. It is submitted by the Revenue that they had filed the impugned appeal before the Commissioner (Appeals) being aggrieved with the Order of Assessment (Order-In-Original referred supra), passed by the Assistant Commissioner of Customs, Petropole LCS as the goods were declared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise of unwrought/unrefined zinc and was a clear case of willful mis-declaration and suppression. They claim it was a ploy to overcome the imposed conditions in the FTP and the assessing authority had therefore erred in the adjudication by ignoring the said facts. It is therefore, relevant to look into this aspect if at all it was the stand of the Revenue before Commissioner (Appeals) and as to how the Appellate Authority had dealt with the said matter. It is noted that the department failed to raise the said point in the earlier Review Order filed before the Commissioner (Appeals). Therefore, the said ground could no longer be taken up by the Revenue in subsequent Appellate proceedings being a fresh ground. In so far as, the contention of the Revenue, with regard to the subject goods being categorically held to be Zinc Dross was concerned reference is invited to para 9 and para 10 of the Order of the Learned Appellate Authority and reiterated here under: 7. Thus, it is very clear that the CRCL, where the samples were sent for test, did not have the wherewithal in the first place to ascertain whether the imported goods were indeed "Zinc Dross". The test results as obtained, have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re dross. He has only given his opinion that the same appears to be a dross type of material. However, the goods being zinc ash/residue has been fully ousted by the chemical examiner. He submits that both the said results have shown that the goods consisted zinc more than 92% by weight and in spite of a specific query that whether the sample was zinc scrap (SAVES), no answer has been given by either of the two test houses. As such he submits that based upon the said test reports goods cannot be classified under Heading 26.20 which cover only ash and residue and nothing else. Further referring to various authoritative text books and dictionaries he submits that that dross is basically metal refuse and impurity in molten metal and where the zinc contents are more than 92%, the same cannot be held to be dross. He submits that the said issue came up before the Tribunal in the case of Premier Brass and Metal Works Pvt. Ltd. v. CC - 1990 (48) E.L.T. 98 wherein the Tribunal held that where the metal contents in the goods varied between 91.38% to 97.03% with very little presence of extraneous metals such as oxide, sulphide, lead, iron etc., the goods have to be assessed as waste and scrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portation. Admittedly the two test reports in question, as reproduced above have shown the zinc contents to be more than 92%. The chemical examiner of Customs House has not given a definite finding that the goods are zinc dross but has only observed that the same appears to be a dross type of material. Similarly there is no answer to the questions posed by the Revenue that whether the sample described as zinc scrap 'SAVES' is as per ISRI specification or not. The various decisions relied upon by the appellant lay down the ratio that where zinc contents are more than 92%, the goods cannot be classified as zinc dross. The documents relating to the import including the documents of the foreign supplier are also describing the goods as zinc waste and scrap. Nothing concrete has been produced on record by the Revenue to show that the descriptions in the documents is not correct. Accordingly by applying the ratio of the Tribunal decision relied upon by the appellant hold that the goods in question were freely importable. 9. It is therefore clear from the Table extracted in para 7 above, the chemical examination report reproduced in para 6 and the aforesaid proposition that the Revenue' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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