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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 ..... led to unload the goods at Bangalore and carry them to the factory in other lorries. There is also no evidence of the appellant having received the melting scrap from other sources. In view of this lacuna in investigation, we have to give the benefit of doubt to the appellants. Appeal allowed in part. - C/18-19/2006 - 676-677/2009 - Dated:- 28-5-2009 - S/Shri T.K. Jayaraman, M.V. Ravindran, JJ. REPRESENTED BY : Shri K. Balasubramaniamn, Advocate, for the Appellant. Ms. Joy Kumari Chander, JCDR, for the Respondent. [Order per : T.K. Jayaraman, Member (T)]. This appeal has been filed against OIO No. 47/05 dated 28-10-05 passed by the Commissioner of Customs, Cochin. 2. We heard both sides. 3. This is the second round of litigation. This Bench in the Final Order No. 1241-1242/02 dated 23-9-02 remanded the issue to the adjudicating authority with the following directions : We have carefully considered the submissions made by both sides. When once the item is classified as HMS scrap, it was not correct on the party of the assessing authority to determine the value as that of reusable used pipes. Furthermore, it was submitted by the Counsel that the issue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining to the goods seized. The appellant had filed end-use bonds with customs for the clearance of the goods in terms of customs Notification No. 16/00 dated 1-3-00. The goods were assessed at concessional rate of 5% as per the declaration by the importer. The importer had requested for house destuffing of the cargo under Central Excise supervision at the importers factory premises at Mandalur range A.P. for the three consignments. In respect of the goods cleared from Cochin port to the factory premises, the Customs sealed the containers with Customs seal to be opened by Central Excise Officials at Cuddapah for house de-stuffing. Investigations revealed that no advance intimation was sent to the Divisional Central Excise Officers about the dispatch or arrival of the import cargo. Iri any case, de-stuffing of cargo covered by bills of entry 79 and 177 was not done under Central Excise supervision. Further it was revealed that the consignments covered by the above two bills or entry were destuffed in Bangalore as per the instructions of one Shri Shariff of Bangalore. Thus it was revealed that the consignments were unloaded at Bangalore not at A.P. Further investigations are conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 10 lakhs was imposed in terms of Section 125 of the Customs Act, 1962. A penalty of Rs. 57,93,332/- was imposed on the main appellant M/s. Triveni Steels under Section 114A of the Customs Act, 1962. An amount of Rs. 1,00,000/- was imposed on Shri A.V. Subba Reddy as penalty under Section 112 of the Customs Act. The appellants are highly aggrieved over the impugned order. The following submissions were made before the Tribunal: (1) The adjudication order has not considered the various contentions urged in reply to the show cause notice. (2) The following case laws are relied on : (i) Travancore Rayongs Ltd. v. UOI - (1978 (2) E.L.T. J 378 (S.C.) (ii) Smt. Pushpa Devi Kabra- 1979 (4) E.L.T. 622 (GOI) (iii) Rasoi Vanaspati v. Collector - 1983 (12) E.L.T. 169 (CEGAT (3) Having accepted the submission of the importer that the cargo is only a melting scrap and classifiable under Customs Tariff Heading 7204.49, the adjudicating authority should not have enhanced the value which is applicable only for new pipes/tubes and not for scrap. (4) The appellant has submitted the end-use certificate from the jurisdictional Dy. Commissioner of Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was also entered in the stock registers verified by the central excise authority and end-use certificates have been issued. (10) The respondent Commissioner only suspects that the imported scrap would not have reached the factory since it was unloaded at Bangalore from the containers. It is well settled that suspicion however, grave cannot take the place of evidence. Several case laws were relied on. There is not even an iota of evidence produced by the lower authority as to whom, when and how much quantity of scrap has been sold in clandestine manner. The onus is on the Revenue to prove that the imported goods had been diverted in between but not consumed as per the end-use certificate produced from Dy. Commissioner of Central Excise. In view of the above, demand on differential duty involved in the melting scrap and the imposition of huge penalties of Rs. 57,93,322/- on the company and Rs. 1,00,000/- on its Managing Director are fully unwarranted and liable to be set aside. The imposition of redemption fine and appropriation 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. (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uphold the order-in-original. 7. We have gone through the records of the case very carefully. In this appeal, three bills of entry are involved. The appellants declared the cargo as HMS scrap. When the goods pertaining to bill of entry No. 340 were examined, prima facie, there was misdeclaration as the goods were found to be pipes. In our view as far as these goods are concerned, the misdeclaration of description as well as value has been established. The goods were subjected to detailed examination by Manager, Kerala Electrical and Allied Engineering Company and also by licensed surveyors. Both the reports indicate that the goods imported are only pipes of various dimensions cut to size of 20 ft length. It has also been stated that the said pipes could not be used in electric arc furnace or induction furnace or melting furnace. It has also been stated that they would fetch the market value of Rs. 30,000/- per Mt. In these circumstances, the Commissioner is 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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