1991 (4) TMI 253 - AT - Customs

Summary

Issues Involved:
1. Determination of the quantity of imported melting scrap for the purpose of end-use condition under Notification No. 151/77-Cus.
2. Acceptance of weighment certificates and handling losses.
3. Application of Section 23 of the Customs Act, 1962 for remission of duty.
4. Relevance of previous Tribunal decisions.

Detailed Analysis:

1. Determination of the Quantity of Imported Melting Scrap:
The primary issue was whether the quantity in the out-turn reports recorded on the Bills of Entry prior to clearance could be taken as the imported quantity for the discharge of the end-use condition under Notification No. 151/77-Cus., or if the quantity certified by the Regional Iron and Steel Controller, Bombay as received in the importers' factory would be relevant. The respondents argued that the weight recorded in the out-turn report was a rough estimate based on draft survey weight and not on actual weighment. They claimed that due to the lack of weighment facilities at Bhavnagar port and handling losses during unloading, the quantity certified by the Regional Iron & Steel Controller should be considered.

2. Acceptance of Weighment Certificates and Handling Losses:
The respondents contended that the Customs authorities at Bhavnagar port were not issuing or accepting weighment certificates from the port authorities. They referred to a letter dated 27-9-1983 by the Asstt. Collector of Customs, Bhavnagar, which stated that weighment certificates issued by the port authority would be accepted for the cancellation of end-use bonds. The Tribunal acknowledged that prior to September 1983, weighment certificates were not being issued or accepted, thus the respondents could not have obtained such certificates for the consignments cleared in 1981 and 1982.

3. Application of Section 23 of the Customs Act, 1962 for Remission of Duty:
Section 23 provides for remission of duty on goods lost or destroyed before clearance for home consumption. The Tribunal noted that for remission, the loss or destruction must be established to the satisfaction of the Asstt. Collector. The Tribunal also recognized that in cases where weighment facilities were unavailable, weighment reports by recognized surveyors or weighment on private weigh-bridges shortly after clearance could be accepted as proof of actual quantity for remission purposes.

4. Relevance of Previous Tribunal Decisions:
The Tribunal referred to its previous decisions in Rollatainers Ltd. v. CC & C.E. and Bharat Earth Movers Ltd. v. CC, Madras, which supported the acceptance of weighment certificates from independent surveyors or public weigh-bridges. However, in the present case, there was no evidence of any survey or actual weighment either inside the port or shortly after clearance. The certificates from the Regional Iron and Steel Controller were issued months after importation and lacked details on the date of receipt or weighment mechanism.

Conclusion:
The Tribunal concluded that the quantity of imported melting scrap certified by the Regional Iron and Steel Controller could not be deemed as the quantity actually cleared. Instead, the quantity indicated in the out-turn reports should be taken as the imported quantity for the purpose of end-use under Notification No. 151/77-Cus. The appeals were allowed, and the orders of the Collector (Appeals) were set aside, restoring the orders of the Asstt. Collector.