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TMI Blog2013 (8) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... In all the 11 Bills of Entry, the percentage of Manganese was found to be more than 1.65%, and the Titanium was more than 0.05% and on the examination of Mill test Certificates of these Bills of Entry also confirmed that goods imported vide the above Bill of Entry were alloy steel and the benefit claimed under notification No.21/2002 Sr. No. 190C thus was not correct. Notification No.21/2002 Customs was amended vide Customs Notification No.56/2008 Cus. Dated 29.04.2008. (Prior to issuance of this notification, Steel Coils (non-alloy) were being cleared as per notification no.021/2002 Sr. No.190B and after issuance of notification no. 56/2008 dated 29/04/2008,) and a new Sr. No. 190C was inserted and by virtue of this addition the rate of duty (Basic Customs Duty) on non-alloy steel was made @0% (Basic Custom Duty). 2.1 All the 150 Bills of Entry filed and cleared earlier were also subjected to scrutiny wherein the appellants have availed the benefit of Notification 021/2002 (Sr. No. 190C) and wherein they also admitted their mistake and deposited Rs.3,01,83,689/- on various dates. In case of 11 live consignment also they deposited differential duty of Rs.80,32,473/-. On the scrut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red and Sixty Two Only) from Tata Motors Ltd under proviso to Section 28(1) of the Customs Act, 1962 along with applicable interest under Section 28AB ibid. (c) I confiscate the goods valued at Rs.13,10,71,798/- (Assessable value) involving differential duty of Rs.80,32,473/- (Rs. Eighty lakhs thirty two thousand four hundred and seventy three only) as per Annexure 'A' of the Show Cause Notice under provision of Section 111(o) and 111(m) of Customs Act 1962. However, I give an option to the importer to redeem the same on payment of redemption fine of Rs. 65,00,000/- (Rupees Sixty Five Lakhs only) under Section 125 of the Customs Act, 1962. (d) I confiscate the goods valued at Rs.49,25,29,561/- involving differential duty of Rs.3,01,83,689/- (Rs. Three crore one lakh eighty three thousand six hundred eighty nine only) as per the Annexure 'B' of the Show Cause Notice under Section 111 (m) and 111 (o) of the Customs Act, 1962. However, I given an option to the importer to redeem the same on payment of redemption fine of Rs.2,46,00,000/- (Rupees Two Crore Forty Six Lakhs Only) under Section 125 of the Customs Act, 1962. (e) I order for appropri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed in the Chapter Note 1(f). If note, such coil will not be treated as 'other alloy steel'. The imported coil cannot be said to be satisfying Note 1(f), if more than one element is present in the imported coil and only one element satisfies the criteria mentioned in Note 1(f). If the department is accepted the definition of 'stainless steel' given in Note 1(e) relied upon by the learned Departmental Representative, actually supports the submission of the appellants. Note 1(e) defines 'stainless steel' as 'alloy steel containing by weight, 1.2% or less of carbon and 10.5% or more of chromium, with or without other elements. If the department's interpretation of Note 1(f) is to be accepted as correct, then the Note 1(f) would, somewhat, read as under: "Steels not complying with the definition of stainless steel and containing by weight, any one of the following elements, in the proportion shown" 3.1.3 The contention is that in the present case, HR or CR steel coils imported contains various elements such as Carbon, Manganese, Silicon, Sulphur, Phosphorous and Titanium. The elements relevant for determining whether the coil is alloy or non-alloy ste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of classification will not amount to mis-declaration. The contention is that even in respect of an ACP client, the MTC was insisted upon by the customs department. This can be seen from the information obtained from ICE Gate, referred to in para D.5. 3.1.7 Even prior to the Appellants being an ACP client and filing the bills of entry through the Risk Management System (RMS), the Appellants have been classifying the items of import as non-alloy steel falling under the heading 72.09. The said classification was never objected to by the department. Therefore to say that the Appellants have suppressed facts by not submitting the MTC or that the goods have not been subject to examination would be incorrect. It is submitted that the ACP status has not influence the classification adopted by the appellants. Prior to the period in question also, the Appellants have always been classifying the Coils so imported under the heading 72.09 as the past imports have always been classified under the said heading. This shows that the interpretation of the chapter note 1(f) by the department and the assessee had been the same. The fact that the Appellants have ACP Status has not influen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and would render the provisions redundant, the contention of the Ld. A.R. is that it is settled law that the legal provisions should be read as it is and there is no room for intendment. The expression "one or more" used in Chapter Note 1(f) clearly indicated that presence of either of the alloying element in the steel would make it allow steel. The contention is that once it is established that the goods are alloy steel, they are precluded from being classified under heading 7208 (hot rolled non-alloy steel) or 7209 (cold rolled non-alloy steel) and they would be appropriately classifiable under heading 7225/7226 of the customs Tariff Act, 1975 depending on the fact whether the steel sheets are hot rolled or cold rolled. Accordingly, the goods being alloy steel sheets are not covered under entry no. 190C of Notification No. 21/2002, and therefore chargeable to 5% basic customs duty. So far as invoking the extended period is concerned, the contention of the Ld. A.R is that the full description of the goods was not declared to avoid the identification of actual description and there has been mis-representation and suppression of actual description and that the description is asso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as placed 324 ACP clients on the website known as "Accredited Clients Programme- Promoting Voluntary Compliance" which envisages the obligations/requirements. The contention is that the appellants failed to perform their obligations and requirements or declaring complete description and specifications whether the goods were alloy steel or non-alloy steel. So far as the contention of the appellants that they have paid the differential duty prior to the issuance of show-cause notice and therefore, the goods are not liable to confiscation, is not correct. In support of this contention, the Revenue placed reliance on the decision of the Madras High Court, in the case of M/s. Venus Enterprises reported in 2006 (199) ELT 205 (Mad) . So far as the penalty on the CHA is concerned, the contention is that the CHA in the past attended more than 150 consignments of the same importer which shows that the CHA had specific knowledge of the goods imported. 5.1.1 We have carefully considered the submissions and perused the records. As regards whether CR/HR coil imported by the appellants is 'other alloy steel' or otherwise, the defence of the appellants is that to fall under the category of 'other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terials, Shri R.R.Suvarna, Shri A.M.Khopkar, Asstt. General Managers, Materials of the appellants are responsible office bearers of the appellants and in their statements recorded under Section 108 of the Customs Act, 1962 have admitted and confirmed that by looking into the Mill test certificates they could identify that the percentage of alloying elements are higher and that the goods should have been classified as Alloy CR Coils. The alleged mis-declaration and suppression on the part of importer resulted in a duty evasion to the tune of Rs.3.82 crores since alloy steel attracted basic customs duty @5% coupled with the fact that the appellants paid the differential duty. These facts establish mis-declaration on the part of the appellants. Therefore, the goods have been rightly held liable for confiscation under Section 111(m) and 111(o) of the Act, penalty is rightly imposed under Sec. 114A of the Act, and extended period is rightly invoked for demanding differential duty. 5.1.4 However, in case of goods valued at Rs. 49,25,29,561/- covered under 41 Bs/E, the goods were not physically available nor they were cleared on any bond or Bank Guarantee, hence redemption fine is not im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, then it will qualify as other alloy steel. But if out of 16 elements mentioned in Chapter Note 1(f) of Chapter 72 and all the elements are to be in the proportion shown in Chapter Note 1(f) of Chapter 72 or more, then it will qualify as other alloy steel. For example, if the imported coils are having 2 elements viz. manganese and titanium and if both are more than the prescribed proportion as mentioned in Chapter Note 1(f) of Chapter 72 i.e. 1.65% or more of manganese and 0.05% or more of titanium them it will be called as other alloy steel. If element of manganese is 1.65% or more but titanium is less than 0.05% then it will not qualify as other alloy steel and vis-à-vis i.e. if titanium is more than 0.05% and manganese is less than 1.65% then also it will not qualify as other alloy steel. Therefore, the expression "or more" is relevant to define other alloy steel otherwise the expression "or more shall become meaningless and redundant. In the case in hand before us as recorded in para 3 of the impugned order the percentage of manganese is more than 1.65% and titanium is more than 0.05% thus the imported coil qualifies the definition of other alloy steel as per Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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