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TMI Blog2013 (5) TMI 630X X X X Extracts X X X X X X X X Extracts X X X X ..... but the Tribunal took into account opinion of IIT and gave the benefit of doubt to the appellants. Thereafter also, there has been no change in the notification to clarify the position to the public at large. Against such background, we give the benefit of doubt to the appellants and hold that the goods were not seconds or defective. Thus, appeal is allowed by setting aside the impugned order and allowing the appellant to clear the goods by classifying the goods under CTI 7215 9090 and claiming exemption under Notification 21/2002-Cus at S. No. 190B. - Appeal No.C/61/2006 - Final Order No. 40033/2013 - Dated:- 18-2-2013 - Shri P.K. Das and Shri Mathew John, JJ. For the Appellant: Shri R. Raghavan, Advocate For the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econds in the guise of non-alloy steel bars prime and claimed duty exemption as applicable to prime goods only. A Show Cause Notice proposing confiscation of the goods on account of mis-declaration of description and also for demanding differential duty by denying the exemption notification was issued and adjudicated resulting in denial of the exemption in Notification 21/2002-Cus (S. No. 190B) dated 01-03-2012, confiscation of the goods under section 111 (m) of the Customs Act, 1962 with option to redeem the goods on payment of fine of Rs. 10,00,000/- and imposition of penalty of Rs. 1,00,000/- on the importer. Aggrieved by the order of the Commissioner, appellants have filed this appeal before the Tribunal. 4. The Counsel for appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Notice. Further this certificate mainly shows the composition of the material and composition of the material imported is known from the test report of NML. 6. The Counsel also relies on the decision of the Tribunal in their own case on identical issue in their own case, namely, Sabari Exim Ltd Vs CC-2005 (180) ELT 386 (Tri-Chennai) wherein the Tribunal did not accept the report of NML in the case of similar goods and extended the exemption. So he argues that in the present case also, the confiscation and penalty should be set aside and exemption extended. 7. Opposing the prayer, the Ld. Authorized Representative for Revenue submits that this is a case where odd sized products were bundled in adhoc manner and shipped. The goods were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inute to very major, the material may be considered as seconds / defectives / rejects. And also, it is a practice in the Trade that such material would be available at a considerably cheaper price. And also in such cases the buyer cannot have any claim over the goods, once the sale is over. It may also be seen that even India, when any seconds materials are sold, the goods will not be in proper / normal packing, the seller clearly stipulates that the buyer cannot have any claim over the goods once sale is made. And also, it is everybody s knowledge, that seconds do have defects which in many cases cannot be found out. Therefore, in Common Trade Parlance the seconds do not have proper packing / labeling. The buyer will not have any claim aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prices declared corresponded to prices for prime quality of goods. No case is made out that if the goods were seconds or defective, it was prohibited for import. Once this factor is taken into account all what revenue is relying is the fact that some packages had goods which were not of same sizes and that the goods were not packed properly. NML has given a report based on the fact that rust was seen on some items and defects like broken ends, bends etc. were found. This results in a situation wherein NML lays down standards for deciding what is defective or seconds and deciding whether the goods are defective or seconds. In the absence of Notification empowering to NML to do both these aspects, this is not a desirable situation because a p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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