2015 (7) TMI 787 - AT - Customs

Benefit of Notification No. 21/2002 - Whether CR/HR coil imported by the appellants is other alloy steel or otherwise - Demand of differential duty - Confiscation of goods - Interest u/s 28AB - Penalty u/s 114A - and 112(a) - Held that - In order to fall under the category of alloy steel one or more elements is needed in the proportion prescribed vide Chapter Note 1(f) of Chapter 72, in addition to steel which is not complying with definition of steel. Admittedly, one of the elements in the impugned goods is steel and it is not complying with definition of stainless steel also. Further, as recorded in para 3 of the impugned order, the percentage of manganese was found to be more than 1.65% and the Titanium was more than 0.05% which is as per the proportion prescribed under in the Chapter Note 1(f) of Chapter 72. Therefore, the impugned goods would rightly fall under the category of other alloy steel and not eligible for the benefit of Notification. Interpretation of Other alloy steel - One element or more than one element - Difference of opinion - Majority order - Held that - if any one of the element is present in the proportion specified that would satisfy the requirement of Chapter Note 1(f) even if the other elements are not present in the proportion specified - The expression used in Chapter Note 1(f) is one or more of the following elements . This would imply that, if one of the element is present in the proportion specified, it would constitute other alloy steel . If more than one element is present it is not necessary that each of the elements should be present in the proportion. Duty demand is confirmed along with penalty. However, as the goods are not physically available and not cleared on any bond or bank guarantee, therefore, Redemption Fine is not imposable. - Decided partly in favour of appellant.

Issues Involved:
1. Classification of imported steel coils as "non-alloy steel" or "other alloy steel."
2. Eligibility for the benefit of Notification No. 21/2002 Sr. No. 190C.
3. Interpretation of Chapter Note 1(f) of Chapter 72.
4. Alleged mis-declaration and suppression by the appellants.
5. Applicability of extended period for demanding differential duty.
6. Imposition of penalties and confiscation of goods.
7. Liability of the Customs House Agent (CHA).

Detailed Analysis:

1. Classification of Imported Steel Coils:
The primary issue was whether the imported CR/HR steel coils should be classified as "non-alloy steel" or "other alloy steel" under Chapter Note 1(f) of Chapter 72. The appellants argued that all elements present in the steel must meet the prescribed limits to be classified as "other alloy steel." The Revenue contended that if any one of the elements exceeds the prescribed limit, the steel should be classified as "other alloy steel." The Tribunal concluded that the presence of any one element in the proportion specified in Chapter Note 1(f) suffices for the classification as "other alloy steel."

2. Eligibility for Notification No. 21/2002 Sr. No. 190C:
The appellants claimed the benefit of Notification No. 21/2002 Sr. No. 190C, which provided a 0% Basic Customs Duty (BCD) for non-alloy steel. The Tribunal found that the imported goods were alloy steel, based on the Mill Test Certificates showing higher percentages of Manganese and Titanium than prescribed limits. Thus, the goods were not eligible for the benefit of the notification and were subject to a 5% BCD.

3. Interpretation of Chapter Note 1(f) of Chapter 72:
The appellants argued that the phrase "one or more" in Chapter Note 1(f) meant all elements present should meet the prescribed limits. The Tribunal, however, upheld that the presence of any one element in the specified proportion is sufficient for the steel to be classified as "other alloy steel." This interpretation was supported by a previous decision in the case of Manoj Sanghvi v. Commissioner of Customs, Kandla.

4. Alleged Mis-declaration and Suppression:
The appellants were accused of mis-declaring the imported goods as non-alloy steel to evade customs duty. Statements from the appellants' senior managers and CHA confirmed that they were aware of the higher alloying elements in the steel. The Tribunal found that the appellants failed to declare the correct description of the goods, resulting in duty evasion of Rs. 3.82 crores.

5. Applicability of Extended Period for Demanding Differential Duty:
The Tribunal upheld the invocation of the extended period for demanding differential duty, citing mis-declaration and suppression of facts by the appellants. The appellants' failure to declare the correct description of the goods under the Risk Management System/Accredited Plan Programme (ACP) justified the extended period.

6. Imposition of Penalties and Confiscation of Goods:
The Commissioner of Customs ordered the confiscation of goods and imposed penalties on the appellants and CHA. The Tribunal upheld the confiscation and penalties, except for the redemption fine of Rs. 2,46,00,000/- on goods not physically available or cleared on bond/bank guarantee, which was set aside.

7. Liability of the Customs House Agent (CHA):
The CHA argued that they acted based on the documents provided by the importer and were not aware of any mis-declaration. The Tribunal found that the CHA could not be held accountable for the mis-declaration by the appellants, setting aside the penalty of Rs. 5,00,000/- imposed on the CHA.

Conclusion:
The Tribunal confirmed the duty demand and penalties on the appellants, except for the redemption fine on goods not physically available. The penalty on the CHA was set aside. The classification of the imported goods as "other alloy steel" was upheld, making them ineligible for the benefit of Notification No. 21/2002 Sr. No. 190C. The interpretation of Chapter Note 1(f) was clarified, confirming that the presence of any one element in the specified proportion is sufficient for classification as "other alloy steel."

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