9911796707
TMI Blog2013 (9) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... hennai was the respondent. 2. The basic issue in dispute in the appeal was whether cut pieces of rails of length less than 2 meters were to be classified under Customs Tariff Heading 7204 as contested by the importer or under Customs Tariff Heading 7302 as contested by Revenue. The final order gave a decision that the goods were to be classified under Heading 7204. 3. The learned AR for Revenue submits that the final order passed by the Tribunal is defective on account of mistakes, apparent on record, listed in the following paragraphs. 4. In this case goods imported are used and worn out rails cut into pieces of length less than 2 meters. The goods were described as "Heavy melting scrap" with intention to get over licensing control and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that Circular 8/2006-Cus dated 17-01-2006 issued by the CBEC was struck down by the Hon'ble Madras High Court in Madras Steel Re-Rollers Association Vs. Union of India - 2007 (217) ELT 167 (Mad.) and the Hon'ble Punjab & Haryana High Court in the case of Gurudev Overseas Ltd. Vs. CBEC, New Delhi - 2008 (229) ELT 195 (P&H). It is the submission of the learned AR for Revenue that the CBEC had appealed to the Hon Supreme Court against the decision of Hon'ble Madras High Court and the Hon Apex Court in the case of Union of India Vs. Madras Steel Re-rollers Association - 2012 (278) ELT 584 (SC) held as under:- "7. Considering the facts and circumstances of the case and relying on the aforesaid decision of this Court, we hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m to any of the definitions at (if), (k), (I) or (m) above or to the definition of wire; Chapter 72 does not include products of heading 7301 or 7302. 11. Further it is pointed out that HSN Note 73.02 states that rails of all lengths shall be classified under the said heading. So the facts that the impugned goods are cut rails of length smaller than 2 meters cannot be a reason to take it out of heading 73.02 12. It is also pointed out that the finding of fact that the goods were in fact used in melting recorded in clause (vi) of para 24 of the impugned order is wrong in as much as the goods are still lying in customs custody. 13. The learned AR submits that since the Tribunal has not appreciated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en orders are cited in para 20 of impugned order) which have not been shown to be overruled and for sake of consistency these have to be followed which has been done in the impugned order and there is no scope for rectification of the impugned order. 17. We have considered arguments on both sides. 18. Considering the long history of the dispute about the classification of similar goods and also different classifications adopted by DGFT and Customs authorities and decisions like that in Loyds Steel Industries Ltd. Vs CC -2007 (207) ELT 431 (Tri-Mum) we do not see merit in the argument of Revenue that this is a case of mis-declaration of description of goods. Such case had to be examined if the Tribunal had come to a conclusion that the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Patiala Castings Pvt Ltd - 2003 (156) ELT 458 (P&H) the issue involved was classification of rusted pipes under the new HSN based Customs Tariff. The argument was that the goods should be classified as pipes. But this argument was not accepted by the Court. The question whether these pipes can be re-rolled without re-melting is not examined in the order. 19.4 In the case of Shriram Metals and Alloys Pvt. Ltd - 2006 (200) ELT 274 (Tri-Chennai) there is a finding that the goods imported viz. "ribbed rusted rods-seconds" were re-rollable scrap but were classifiable under heading 72.04. At that time Revenue was contesting that the goods should be classifiable under heading 72.14. 19.5 The principle stated in Note (A) of HSN notes und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it and passed detailed order. There is no apparent mistake in the impugned order on this count. 20. Revenue's reliance on Section Note 8 (n) does not have much force in as much as for this note to trigger, first the classification under heading 73.02 is to be proved, which is the core issue in dispute. The Tribunal found that the material imported could not be used as rails. Tribunal was of the view that the impugned goods were no longer usable as rails and the words "irrespective of their intended use" used in notes under heading 73.02 is not for the purpose of differentiating between re-rollable scrap and re-melting scrap. (This is recorded in para 22 and 23 of the impugned order). The goods can be excluded from 72.04 only if it retains ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
