TMI Blog2005 (4) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... 18-3-03 Value of Goods Rs. 54,65,457/-; Diff. duty Rs. 20,87,670/- Penalty Rs. 20,87,670/- 5. C/273/04 K. Ravi Babu -do- -do- Penalty Rs. 5,00,000/- 6. C/274/04 Latha Rani -do- -do- Penalty Rs. 1,00,000/- 7. C/493/04 M/s. Magus Metals 3106/04 dt. 23-9-04 19-3-03 Diff. Duty Rs. 28,09,858/- Interest (not quantified) R.F. Rs. 5,00,000/- in lieu of confiscation. 8. C/494/04 K. Ravi Babu -do- -do- 9. C/495/04 Latha Rani -do- -do- Combined penalty of Rs. 28,09,858/- on both The appellant's unit is presently known as M/s. Magus Metals Pvt. Ltd. with Shri K. Ravi Babu as Executive Director and Mrs. Latha Rani as Director of the Company. The unit was originally known as M/s. R.R. Metals Pvt. Ltd. and it was established in 1992. The unit manufactures of Copper Cathodes, Zinc Sulphate, Copper Sulphate and Copper Oxychloride. They procure raw materials indigenously and also by import. All these appeals are in respect of the imported items. The appellant's unit had been regularly importing goods declared to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing :- (i) The Department has not produced any concrete evidence to show that the impugned goods are hazardous waste. The reports relied on by the Revenue are neither conclusive nor decisive. Such reports are untenable under law as held in the following case laws :- (a) Karnataka Chem Syn Ltd. v. Commissioner [2001 (138) E.L.T. 697 (T-Bang.)] (ii) Since the goods in question contained less than 1.25% lead and 0.1% of cadmium as per chemical analysis obtained from EPTRI as per the Hazardous Wastes (Management and Handling) Rules, 2000, the goods are not hazardous, even if they contain less than 1.25% lead and 0.1% cadmium respectively. Even though this was one of the grounds urged before the authorities, no finding has been arrived at by the Commissioners. Hence they cannot allege that the goods are not copper concentrate. He relied on the following case laws :- (a) Thakurdas Sons v. CCE, Chennai [2002 (144) E.L.T. 139 (T)] (iii) The appellants followed the proper procedure in clearing the goods provisionally. Only after the Chemical Examiner's report, the assessments were finalised. Hence there is no misrepresentation or suppression of facts. He relied on the followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o some correspondences between the importer and foreign supplier indicating that the appellants purposely wanted the foreign supplier to declare the items as copper concentrate. In view of the above, she said that there is a clear suppression of facts and there is every justification for invoking the longer period. 5. We have gone through the rival contentions. The first show cause notice was issued on 21-8-2002. However, for the consignments cleared earlier in the year 2000-2001 2001-2002, the show cause notices were issued on 18-3-2003 and on 19-3-2003. As contended by the party, all the facts were available even when the first show cause notice was issued. Moreover the goods were cleared provisionally and assessments were finalised only on the basis of the test report by the Customs Laboratory, Chennai. In these circumstances, we hold that the demands in respect of all these orders are clearly time barred. The case laws relied on by the appellants are very relevant. Even otherwise, when the goods are cleared on the basis of test report by the Customs Laboratory, Customs House, Chennai, one cannot allege that there is suppression of facts. In any case, the test reports of EPT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is a letter dated 21-1-2002 which says that the sample under investigation could have originated from a copper or copper compounds manufacturing/handling industrial operation. From the analytical results, it may be inferred that the material is hazardous as per class B3 of schedule 2 3 of Hazardous Wastes (Management Handling) Amendment Rules, 2000. Further the results indicate that the material might have originated, in general, from the list of materials described under Basel Nos. A1090, A1100, A1130 of Schedule-3 (Part-A), List-A of the above mentioned Rules. Further, as per the characterization results, the material could be bracketed with H13 of List of Hazardous Characteristics, Part-B of Schedule 3. There is a further letter dated 7-3-2002 in continuation of the earlier letter correcting one sentence from the earlier letter. The correct sentence reads as follows :- "From the analytical results, it may be inferred that the material is hazardous as per Class B 3 of Schedule 2 of Hazardous Wastes (Mangement Handling) Rules, 1989 and amendments thereof". We have gone through the Hazardous Waste (Management and Handling) Rules, 1989. These rules have been made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opper cake and copper residues containing less than 1.25% lead and 0.1% cadmium respectively) in dispersible form, containing schedule 2 constituents to an extent that they exhibit hazard characteristics indicated in part B of this schedule." Even if the impugned goods are considered as waste of copper and copper alloys and if the percentage of copper is below 1.25% and cadmium is below 0.1%, it would not come in the category of B 1070. The implication is that this is not a waste requiring subject license and clearance from the Ministry of Environment (Protection). The Adjudication order does not discuss this aspect at all. We have already seen that the level of cadmium in the sample of the impugned goods is 'Below Detection Level' (BDL). In our view, the reliance of EPTRI Test Report to come to a conclusion that the goods are hazardous is misplaced for the reasons stated above. 7. The Order-in-Original contends that the impugned goods are not copper concentrate, and there is a mis-declaration. The conclusion is based on a test result of the sample by National Mineral Development Corporation Ltd. (NMDC). The chemical analysis indicates that the percentage of copper is to be nea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , New Delhi. As far as the impugned goods are concerned, no samples have been sent to the Chemical Examiner at Chennai. It is not understood as to why the Revenue has dispensed with the services of the Chemical Examiner who is the proper officer to test the samples and who has all along tested the goods imported by the appellants. If the Revenue had any doubt regarding the test results of the Chemical Examiner, Chennai, they could have appealed to the Chief Chemist, New Delhi. But in this case they have totally by-passed the Departmental facilities and sent the samples to EPTRI and NMDC. It is not the case of Revenue that the Customs Laboratory does not have adequate facilities to test the sample. The Hon'ble Supreme Court in the case of Reliance Cellulose Products Ltd. v. Collector of C. Excise, Hyderabad [1997 (93) E.L.T. 646 (S.C.)] has held that the Test report of Chemical Examiner and Chief Chemist of the Government, unless demonstrated to be erroneous, cannot be lightly brushed aside on the basis of opinion of some private persons obtained by the assessee. No doubt, in the present case, the Revenue has not obtained the Test Results from private persons. Further there is no re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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