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TMI Blog2001 (7) TMI 795X X X X Extracts X X X X X X X X Extracts X X X X ..... m the declared value of Rs. 55,905/- and imposing penalty of Rs. 25,000/-. 2. Shri O.S. Bajpai, ld. Advocate, submitted that the appellants is a scrap dealer for the last 25 years; that the appellant imported scrap from M/s. Fritz Bender Metalle, Germany; that they filed Bill of Entry No. 324372, dated 24-1-2000; that there were two containers in the consignment-one container had scrap weighing 18616 kgs. which had already been cleared; that the other container contained scrap weighing 28835 kgs. out of which the dispute is with regard to 2384 kgs. only; that though there is no dispute regarding balance scrap weighing 16451 kgs., it has not been released to the appellants. The ld. Advocate further mentioned that according to the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d assembly and the general practice of manufacturers and end users worldwide is to scrap defective material which is then disposed off in the secondary market. 3. Ld. Advocate also emphasized that the information given by K. D souza, in letter dated 14-2-2001 was based on the report received from YKK, Japan; that the full information received from Japan was not revealed and as such letter dated 14-2-2001 cannot be relied upon, that proper procedure for taking sample was not followed as Shri D souza had admitted in his cross examination no memo was prepared while taking out sample and bag was not sealed; that the demonstration regarding mis-use of sliders by counterfeiters was not done with the sample taken out of the seized goods but with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms - 2000 (122) E.L.T. 321 (S.C.) He mentioned that none of these decisions support the case of the Department; that in Rajnath Motors case, the appellants therein had purchased the goods as a stock lot whereas in the present matter the goods were purchased as scrap for being melted for their metal content; that there is no material brought on record to prove that the sale was as stock lot and not as scrap; that moreover in Rajnath Motor s case the ratio of the decision is that the transaction value cannot be discarded and substituted by the catalogue price of a different manufacturing company; that in Hindustan Pencil's case also, letters were written by the supplier to the importer mentioning the term stock lot ; that in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t least the other goods which were seized but not confiscated should be released to them. 5. Countering the arguments, Shri P.K. Jain, ld. SDR, submitted that the Department has not considered the impugned goods as scrap falling under Chapter 79 of the First Schedule to the Customs Tariff Act; that the goods have been held to be classifiable under sub-heading 9607.20 i.e. slide fasteners; that as per the opinion expressed by M/s. YKK India, the impugned goods are good quality, unused YKK sliders; that the opinion of the manufacturer will have precedence over the opinion given by the seller M/s. Fritz Bender - Metalle as they are not the manufacturer of goods; that the goods, though sold as scrap, were in fact sliders; that the impugned go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods shall be chargeable to duty at such rate as would be applicable if the goods had been imported in the mutilated form; that goods cannot be confiscated on the basis of mere presumption that the impugned sliders can be used by counter-feiters. 7. We have considered the submissions of both the sides. In the matter what has been imported described as Zinc Die-cast Scrap , on examination was found to be Zip sliders manufactured by M/s. YKK, Japan. The Revenue has relied upon M/s. YKK Pvt. Ltd., Delhi s letter dated 14-2-2001 according to which the sliders were of good quality and unused one. The appellants on the other hand have contended that they had purchased only scrap. They have referred to contract Note No. 6665 - 00, dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir letter dated 20-2-2001. The appellants can certainly make the request for mutilation only after the examination of the goods unless and until evidence is there to show that they had intentionally imported sliders in the disguise of scrap. In a similar situation, the Appellate Tribunal observed as under in the case of CC v. O.P. Steels Ltd., (supra) Request is made after assessment .... therefore the benefit of mutilation should be denied. We are not able to agree to the ld. DR s plea, as we find no evidence has been brought forth that the party had pre-concern or knowledge about the import of a particular amount of goods which were not as per the contract entered into by them for import of scrap, with the foreign supplier . In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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