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TMI Blog2009 (5) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... 002 (50) RLT 635. In the impugned order the adjudicating authority has also held that the very item is sold on higher price abroad and in India and the same has not been substantiated nor was disclosed to the party. In view of these discrepancies, we are of the view that the matter requires to be re-examined by the adjudicating authority. In the view we have taken, we are remanding the matter to the concerned adjudicating authority to examine the issue afresh and to pass an order in accordance with law on providing an opportunity to the party. All connected issues are kept open. Thus these appeals are disposed off in the above terms." Consequent to the remand order, the impugned order has been passed. The brief facts of the case are as follows :- The appellants filed a bill of entry No. 340 dated 22-1-01 for clearance of 218.210 Mt of non-alloy steel re-melting scrap imported in containers at Cochin. The declaration was "non-alloy steel re-melting scrap falling under Customs Tariff Heading 7204.49." The benefit of Customs Notification No. 16/00 dated 1-3-2001 and Customs Notification No. 34/97 dated 7-4-97 was claimed. There was some intelligence and the DRI officers examined the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited the factory. (2) Shri A.V. Subba Reddy, Managing Director M/s. Triveni Steels Pvt. Ltd., (Visak). (3) Shri Rajiv P.M. Driver of the lorry which transported the container to Bangalore from Cochin (Port). (4) Shri Augustine, Driver of lorry which transported the container to Bangalore. (5) Shri Sugunan, Driver of the lorry which transported the goods to Bangalore. The examination report in both the bills of entry have been done by the Examiner Customs. In terms of the examination report the cargo is steel scrap. But the said examination was only superficial. The appraiser has specifically directed that the Central Excise Authorities supervising the destuffing should confirm that the goods are scrap only. 4. In view of the above, show cause notice was issued in respect of goods covered by all the three bills of entry. The show cause notice dated 19-7-01 was issued by the Addl. Director (General), Directorate of Revenue Intelligence Chennai. Penalties were also proposed on both the main appellants M/s. Triveni Steels Pvt. Ltd., and Shri A.V. Subba Reddy, Managing Director. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the jurisdictional Dy. Commissioner of Central Excise. This is binding on the Original Authority. He cannot suspect or question the validity of the same based on extraneous materials which never figured as issues in the show cause notice especially the letter dated 19-2-02 from the Commissioner of Central Excise, Hyderabad which is not made available to the appellant. The Notification No. 16/2000-Cus., does not prescribe any condition that the certificate issued by the Assistant Commissioner of Central Excise/Dy. Commissioner of Central Excise should be approved by Commissioner of Central Excise. (5) The jurisdictional Dy. Commissioner of Central Excise had not only issued the end-use certificate but also verified and signed the relevant stock records of the appellant which were at the custody of the Anti-evasion wing of Central Excise, Hyderabad. This was also brought to the notice of the Original Authority on 14-3-02. (6) It is not the case of the Original Authority that they have forged the signature of the jurisdictional Dy. Commissioner of Central Excise to obtain the end-use certificate. For the first time, it is alleged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of bank guarantee for a sum of Rs. 5,25,000/- in view of confiscation is also not sustainable for the above grounds and requires to be refunded. (11) The show cause notice dated 19-7-01 proposes to invoke Section 28 for demanding duty. The first order dated 30-3-02 at para 6 of the order had considered the demand of duty under Section 28(1), interest under Section 28AB and penalty under Section 14A and held that these provisions are not applicable as permitting clearances under Section 47 for home consumption is not made. Whereas in the present order, dated 27-10-05, not only Section 28(1), 28AB, Section 111A are invoked but also confiscation of goods which are not available for confiscation is ordered. Hence, order is not as per law. (12) The appellant had sought for cross-examination of the drivers who had brought the containers to Bangalore and alleged to have given statement that the company had destuffed the goods at Bangalore. The appellant wanted to cross-examine the drivers as they refused to take their vehicles from Ghat Section as shown in the road map and the appellant had to make alternative arrangement to transport the said goods to Rajampet. Cross-exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s right in holding the goods covered by bill of entry 340 as pipes falling under 7304.39. The denial of the benefit of exemption notification No. 16/2000 dated 1-3-2000 for the goods covered by the above bill of entry is also legal and proper. It has to be accepted. The Commissioner has determined the valuation of the goods in terms of Rule 8 of the valuation rules. He has taken the market value of the goods to be Rs. 30,000/- per Mt. In these circumstances of the case, the Commissioner has adopted the best judgment method and arrived at the assessable value of Rs. 14,962/- per Mt. by reducing the duty, incidental cost, reasonable profit etc. This appears to be very reasonable. Therefore, as far as the goods covered by BE 340 are concerned we uphold the short levy amounting to Rs. 19,87,356/-, interest under Section 28AB is also payable. The goods are liable for confiscation under Section 111(l), (m) and (o) of the Customs Act. However taking into account the facts and circumstances of the case, the fine is reduced to Rs. 2,00,000/- only. 8. With regard to other goods covered by bills of entry No. 79 and 177 they had already been cleared by the Customs. The main allegation is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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