2006 (11) TMI 531 - AT - Customs

Summary

Issues Involved:
1. Applicability of Board's instructions.
2. Acceptability of the end-use certificate produced by the importer.
3. Request for mutilation of goods.
4. Determination of the nature of the imported scrap (melting scrap vs. re-rollable scrap).
5. Confiscation and penalties under the Customs Act.

Summary:

1. Applicability of Board's Instructions:
The Tribunal held that the Board's instructions contained in letter No. 528/163/93-Cus. (TU) dated 4-1-94 were binding on the Customs authorities. The instructions mandated that in cases of mixed imports of re-rollable scrap and melting scrap, the benefit of Notification No. 83/90-Cus. should be extended based on end-use, subject to execution of an end-use bond. The Commissioner was bound to follow these instructions, which were reaffirmed by the Tribunal and the Hon'ble High Court.

2. Acceptability of the End-Use Certificate:
The appellants produced an end-use certificate from the Central Excise authorities certifying that 2275 MTs of steel scrap had been melted to manufacture MS ingots. The Commissioner, however, rejected this certificate, equating the melting of the scrap to mutilation without customs permission and supervision. The Tribunal found this reasoning flawed, noting that once the scrap was melted, the request for mutilation became irrelevant. The Tribunal held that the end-use certificate should have been accepted, as there was no lack of correlation between the imported scrap and the scrap covered by the certificate.

3. Request for Mutilation of Goods:
The Tribunal observed that the appellants' request for mutilation of the goods was denied by the lower authority due to a lack of bona fide. However, the Tribunal noted that in similar circumstances, the benefit of mutilation had been allowed. Given the peculiar circumstances of this case, the Tribunal indicated that this facility could also be considered.

4. Determination of the Nature of the Imported Scrap:
The Tribunal accepted the NML expert's opinion that segregation of re-rollable scrap from melting scrap was impractical. The Tribunal's Final Order dated 12-12-97, which became final and binding, had already settled that the 2275 MTs of scrap could not be practically segregated and should be treated as melting scrap.

5. Confiscation and Penalties:
The Tribunal upheld the confiscation of the goods and the penalties imposed by the Commissioner in the original order. The value of the goods was determined as US $230 per MT for plate cuttings and US $207 per MT for coils. The Tribunal maintained the redemption fine of Rs. 20 lakhs and penalties of Rs. 2 lakhs each on the company and its Managing Director.

Final Order:
The Tribunal set aside the Commissioner's order to the extent that it denied the benefit of the end-use certificate and held that the importer was eligible for such benefit. The scrap in question was to be treated as melting scrap for duty assessment purposes, and the benefit of Notification No. 11/97-Cus. was to be given to the assessee. The value of the goods was reaffirmed as previously determined. The confiscation and penalties remained as settled in the Tribunal's earlier Final Order. The appeal by the company was allowed in part, while the appeal by the Managing Director was dismissed.