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TMI Blog2004 (11) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate, mentioned that the Appellants, engaged in the activity of refining Zinc Ore Concentrate, imported a consignment of Zinc Ore Concentrate from M/s. Shaan Scrap Trading Co. Ltd., Sharjah; that the description, quantity and value declared in the bill of entry was according to the import documents, namely, contract with the foreign supplier, invoice, packing list, bill of lading, etc.; that the Department drew representative samples of the impugned goods which were assessed provisionally pending the test report; that after receipt of the Test Report and subsequent investigation, a show cause notice dated 12-7-1999 was issued to them alleging that the goods imported is Zinc Residue and not Zinc Ore Concentrate, the net weight of goods w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f foreign matter; that thus the presence of lumps, coarse powder, Zinc oxide, iron oxide, free metallic zinc in the Zinc Ore Concentrate is expected; that mere presence of these items in the Zinc Ore Concentrate will not make it residue since according to the Test Report, it contains 58.6% by weight of metallic zinc and 83% by weight of total Zinc. He has referred to the letter dated 20-2-2001 of Shri Sushil Bhandari, Dean, Faculty of Engineering Head of Department of Mining, MBM, Engineering College, Jodhpur, wherein it is mentioned that Zinc Concentrate usually contains 45 to 60% Zinc and Zinc metal content in the residue is usually less than 1%. He, therefore, contended that there is no misdeclaration by the Appellants as regards the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t adduced any evidence whatsoever of contemporaneous imports. Finally, he submitted that the negligible variation in net weight could have been due to defect in the weighing scale; that, further, having regard to the nature of the goods, such negligible variation is well within the acceptable tolerance; that as the declaration made in Bill of Entry was completely based upon the import documents, the Appellants could not be held responsible for the same and no penalty is imposable on either of the Appellants. 4. Countering the arguments, Shri S.M. Tata., learned S.D.R., submitted that the Chemical Examiner s Test Report clearly mentions that it is a sample of other than Ore Concentrate and it has the characteristics of Zinc Residue ; th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny contemporaneous imports, the assessable value has been rightly determined on the basis of LME price. He relied upon the decision in the case of C.C., Mumbai v. Elpro International Ltd., 2001 (127) E.L.T. 157 (T). 5.1 We have considered the submissions of both the sides. The Chemical Examiner, after testing the sample drawn from the imported goods, has opined as under : The sample is in the form of greyish friable lumps and coarse powder. It contains Zinc Oxide, Iron Oxide, free metallic Zinc together with small amount of silicious matter. It has the characteristics of Zinc Residue. It is other than Ore Concentrate. Percentage of Metallic Zinc by wt. (in the samples) = 58.6 (fifty-eight decimal six). Percentage of total Zinc conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Handling) Rules, 1989 issued under Environment (Protection) Act, 1986. The Appellants have not adduced any material in the present matter to show that the impugned goods are different from the goods examined by the Rajasthan State Pollution Control Board. Accordingly, we hold that the impugned goods are Zinc Residue - a hazardous waste and is liable to confiscation as it has not been shown to have been imported against specific licence. 6. Coming to the question of valuation, we find substance in the contention made by the learned Advocate that the value cannot be determined on the basis of LME price for 100% Zinc content and allowing deduction for the impurities. As no contemporaneous import price is available and there is nothing t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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