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TMI Blog1993 (4) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... at Kandla for the clearance of goods declared as "Waste Oil". On the basis of the invoice dated 10-7-1990 issued by M/s. Orchid General Trading, Dubai, the CIF value of the goods was declared as Rs. 1,19,382/-. The goods were claimed as covered by the Open General Licence in terms of Item No. 1(3) of Appendix 6 of the Import and Export Policy for the period April-March, 1990-93. The assessment of the goods was claimed under Heading 3823.90 of the CTA, 1975 read with Notification No. 47/90-Cus. and under Heading 2710.99 of the CET for levy of countervailing duty. The scrutiny of the relative Import General Manifest and Bill of Lading revealed that the goods were initially described in the shipping documents as "Used Lube Oil (Waste oil)" but subsequently at the instance of the importers the suppliers amended the description of the goods to read as "Waste Oil". 2A. After examination of the goods, samples were drawn for test. In the report dated 1-11-1990 furnished by the Customs House Laboratory certified that it was a black coloured liquid having mineral oil content exceeding 70% by weight and flash point exceeding 94oC. It was also certified that it had characteristics of "Lubrica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the wide variation in the findings in regard to the mineral oil content in the samples drawn from the same consignment. He contended that under these circumstances as claimed by the appellants the goods were classifiable under Heading 2710.99 of the Central Excise Tariff. Continuing his submissions Shri Vyas submitted that the Additional Collector's finding that for Import Trade Control purposes the goods were covered by Entry No. 174 of Appendix-2 Part-B of the Import Policy was also erroneous since that entry has to be held as relating to only Iron and Steel products by virtue of the definition of 'defective' and 'Scrap' given under para 26 Chapter II of the relevant policy. He added that the prohibition in terms of sub-clause (1)(iii) of Clause 5 of the Import (Control) Order 1955 was also not applicable to the disputed goods since the requirement of 'newness' in the case of mineral oils is irrelevant. He argued that the appellants being actual user the imported oil had to be deemed as covered by the Open General Licence in terms of Sr. No. 1(iii) of Appendix 6 of the Import Policy since it was not covered by any entry in Appendices 2, 3, 5, 6 (List 8) and Appendix 8. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Heading 2710.60 of the Central Excise Tariff or under the residuary Heading 2710.99. (ii) Whether in terms of Serial No. 174 of Appendix 2, Part-B of the relevant Import Policy and condition No. 5 of Clause 3(2) of the Imports and Exports (Control) Order the import of "Used Lubricating Oil (Waste oil)" in question without a specific licence has to be deemed as having been imported in contravention of clause 3 of the Imports (Control) Order, 1955 and Section 3 of the Imports and Exports (Control) Act, 1947. 6. In order to appreciate the rival contention on the question of classification of the imported goods under the Central Excise Tariff for the purpose of C. V. duty, we consider it desirable to reproduce below the relevant entries of the Central Excise Tariff: Heading No. Sub-heading No. Description of goods 27.10 Petroleum oils and oils obtained from bituminous materials, other than crude; preparations not elsewhere specified, or included; containing by weight 70% or more of petroleum oils or oils obtained from bituminous minerals; these oils being the basic constituents of the preparations. 2710.60 Lubricating oil, that is to say any oil as is ordinarily used f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Tariff since the Chemical Examiner had not been able to indicate the actual use of the imported goods. In this regard another point raised by the appellants is that the test report furnished by the Custom House Laboratory could not be relied upon since there was another report which showed that the mineral oil content of the sample tested was only 14.61%. We are, however, unable to take any note of this report since the appellants had neither contested the test report which was relied upon by the adjudicating authority either by asking for re-test of the sample drawn from the consignment or on the basis of any other report showing mineral oil content of the goods as only 14.61%. 8. In view of the above discussion we do not find any reason to differ with the finding in the impugned order that for the purpose of levy of countervailing duty the imported "Used Lubricating oil (Waste oil)" was classifiable under Heading 2710.60 of the Central Excise Tariff. 9. As regards the second point, we find that condition No. 5 of clause 3(2) of the Imports and Exports (Control) Order provides that the goods to be imported against an Import Licence shall be new goods. Before the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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