TMI Blog2005 (10) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... r textile fibre waste in terms of the import licence. It filed Bill of Entry No. 10537, dated 29-12-89 for the clearance of 159 bales of goods declared as 'Synthetic waste'. The weight of the consignment was over 36 tonnes and value was a little over Rs. Three lakhs. Invoice dated 16-10-89 produced showed the price of US $ .50 per Kg. This invoice was from M/s. A. Martin Bunzl Ltd. of London. 2.The Customs Authorities doubted the nature of the goods under import as well as its value. Accordingly, investigations were initiated rending the outcome of the investigation, the importer was permitted to clear the goods on provisional basis and the goods were so released in Feb. 90. Subsequently, a show cause notice dated 21-3-91 was issued alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not form part of the slivers tows. This could be separated without much effort (even handpicked). The samples which contain fused fibres may be treated as synthetic waste (soft waste). In these cases also most of the slivers tows are of good texture and normal fibres length and these could be separated from slivers tows having fused fibres and put to normal use". 5.Subsequently, at the request of the importers, a re-test was done by the Chief Chemist and his report dated 4-12-98 made available. The re-test report concluded as under :- "In view of the above test findings on the samples and description of waste occurring at different stages of manufacture of synthetic fibres as well as during its processing, 11 samples under refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, contended that the reports of the Chemical Examiners are in favour of the importer and the Commissioner's findings to the contrary is clearly erroneous. 8.With regard to valuation, the contention of the Counsel is that the consignment was procured from a dealer and the investigation of the Revenue had confirmed the sale price. It is also being pointed out that even at the enhanced value the appellant had sufficient balance in its DEC licence. Another point made is that since the import was, in any case, nor subject to any duty, the appellant could not be charged with undervaluation. 9.The contention of the learned Counsel for the Revenue is that the appellant's licence, essentially permitted import of soft waste and the test of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... real price of the goods. Learned Counsel has emphasised that this clearly brings out mala fides. 11.The basic dispute is whether the consignment is synthetic waste as declared or it is synthetic staple fibre as held by the Commissioner. It is to be noted that the adjudication order accepted 1/3rd of the consignment as synthetic waste. This ratio of 2 : 1 has been worked out because 10 out of the 15 samples have been certified by the Chemical Examiner as fibre and remaining 5 as synthetic waste. The ratio found in the testing of 15 samples has been applied in the adjudication in determining how much the total consignment of 38 mts. was to be treated as synthetic fibre and how much as synthetic waste. Thus, the quantitative apportionment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larly, HSN note to Heading 5503 states that synthetic staple fibre are usually press-packed in bales. The fibres are generally of uniform length which distinguishes them from the waste material of Heading 55.05. The appellants import was declared as synthetic waste. The above said note clearly states that if fibres are not generally of uniform length, the material will fall as synthetic waste under Heading 55.05. One thing that is clear from the Chemical Examiner's report is that the samples contained fused fibres and fibres are of different lengths. 13.As noted above, the scheme of the Central Excise Tariff which follows HSN classification, is that only standardized tow and standardized staple fibre can be classified as such and material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oice, the price of the consignment, was .83 US $ per kg. Learned Counsel for the revenue has emphasised that it is difficult to imagine that the appellant's merchant supplier would make purchase at .83 US $ so as to make a simultaneous resale of the material to the appellant at a much lower price so as to incur a loss. No material is on record to explain the reason for sale at a lower price, such as on account of any prior contractual obligation. In the circumstances, it has to be held that the actual value of the consignment was at the rate of .83 US $ per kg. Despite this, the importer produced an invoice @ .50 US $ per kg. and made declaration in the Bill of Entry in terms of that price. That declaration could only be a misdeclared. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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