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TMI Blog2005 (4) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 'Copper Concentrate' through Chennai Port. The goods were cleared by the Customs by accepting the declaration of the appellant as regards the description and value. After test report by the Chemical Examiner, Customs Laboratory, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 following case laws :- (a) Ganapati International v. CC, West Bengal [2001 (130) E.L.T. 370 (T-Kol.)] (b) Porcelain Crafts and Components v. CCE, Calcutta [2001 (138) E.L.T. 471 (T-Kol.)] (iv) The Test reports of EPTRI and NMDC were obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 EPTRI and NMDC cannot be made applicable to the earlier consignments. The case laws relied on by the learned Advocate are very relevant. In view of the observations stated above, we set aside both Orders-in-Original No. 13/04 dated 29-2-2004 passed by the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 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 (Management & Handling) Rules, 1989 and amendments thereof". 9. We have gone through the Hazardous Waste (Management and Handling) Rules, 1989. These rules have been made by the Central Government under Environment (Protection) Act, 1986. The hazardous waste is defined in Rule 3(i). 'Hazardous Waste' means :- "(a) Waste Substances which are generated in the process indicated in Column 2 of Schedule 1 and consists of wholly or partly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 14. 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 nearly 40%. The Report of Mineralogical Studies is as follows :- "The sample is soft, friable, solely grey in color and soils the fingers with silky luster. This is non-reactive to water and characterized by hygroscope nature and dissolves only in conc. HNO3. This sample is ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reason as to why they dispensed with the Departmental Laboratory. The appellants had been importing similar goods earlier. The Revenue used the present Test Reports of EPTRI and NMDC to demand differential duty on past consignments. Unless it is proved that the te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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