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TMI Blog2015 (2) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... the Heading 72.04 excludes articles which can be reused for their former purposes or can be adopted for other uses with or without repair or renovation. It is also evident that usability as such/after processing is an important criterion to arrive at the conclusion whether the goods are scrap. Issue requires fresh adjudication by the Ld.Commissioner and before adjudication representative sample of the imported goods should be re-examined in presence of the importer s representative and the experts dealing in the relevant field to ascertain whether the items were usable as such or after their processing to arrive at the conclusion that the imported items are scrap or otherwise. - hence the examination of applicability of the judgements cited by both sides to the facts in our opinion, at this stage would be pre-mature. Accordingly, the order of the Ld.Commissioner is set aside with the direction to pass a fresh order after hearing all the parties. - Matter remanded back - Decided in favour of assessee. - Appeal Nos. Cus. Ap. 76483, 76484, 76478/14 - Order No. FO/A/75723-75725/2014 - Dated:- 7-1-2015 - Hon ble Dr. D. M. Misra And Hon ble Dr. I. P. Lal,JJ. For the Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed proposing confiscation of the goods and imposition of penalty on the importer, the Chartered Engineer and the CHA namely M/s.J.C.Bose Sons, who have associated themselves towards clearance of the goods which they know are liable for confiscation. Being aggrieved by the said show cause notice, the Appellant M/s.Ansun Systems Consulting (P) Ltd. filed a Writ Petition before the Calcutta High Court, being W.P.No.962 of 2014. In the meantime they also filed reply to the show cause notice which was adjudicated by the Ld.Commissioner confiscating the impugned goods with an option to M/s.Ansun Systems Consulting Pvt.Ltd. to redeem the goods on payment of redemption fine of ₹ 20.00 Lakhs only, in lieu of the confiscation, provided that before clearance, they mutilate the goods at their cost, so as to convert it into scrap. Ld.Commissioner imposed penalty of ₹ 5.00 Lakhs on the said importer, penalty of ₹ 5.00 Lakhs on M/s.J.C. Bose Sons, CHA and penalty of ₹ 50,000/- on Shri Shyamal Dasgupta, Chartered Engineer. The aforesaid Writ Petition came up for hearing before the Calcutta High Court when the same was disposed of by an order dated November 10, 2014 reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Laboratories 2005(179)ELT 17(SC)(Para 7) (iii) Atlantic Spinning Mills Weaving Mills Ltd.v.CCE C, 2002(145)ELT 324(Para 10), affirmed by Supreme Court. (iv) CC, Calcutta v. Hindalco Indus. 2007(201)ELT 343(Cal.)(Para 9 10) 3.4 Under the circumstances confiscation of the said goods, imposing further conditions for release of the said goods and imposition of penalty are untenable and unreasonable. 3.5 He submitted that Ld.Commissioner has erred in distinguishing the aforesaid Tribunal s judgements by holding that prohibition/restriction imposed by the Control Order, which was amended by Steel and Steel Quality Control Order, 2012 which came into effect after passing of the said decisions of the Tribunal and CBEC instruction. Contention is that the said CBEC instruction [Para 2(i)] it would be seen that the same relates import of sub-standard CRGO Steel sheets and strips whereas from the aforesaid decisions of the Tribunal it would be seen that goods cannot be classified as defective CRGO steel sheets/goods and can only be treated as scrap within the meaning of note 8A of section 15 of the Customs Tariff Act, 1975. Neither the said control order nor the CBEC instruc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive and vital role in managing Chartered Engineer s Certificate which has been held to be false in the impugned order and therefore no penalty is imposable. 3.9 Ministry of Steel in its Circular bearing No.1(8) 2012-TW dated 20.02.2014 has requested the Board to look into the tenability of clearing of Silicon Electrical Steel Scrap originated from old and used transformer under CTH 72261100. It is thus evident that the Ministry of Steel is of the opinion that such strips are not classifiable as scrap. 3.10 Shri K.K.Sanyal, the Ld.Consultant for Shyamal Dasgupta submitted that the Appellant is a qualified Chartered Engineer, listed in the panel of Chartered Engineer, as appointed by Customs House in its approved list No.1/2014 dated 30.01.2014, having long experience in examination of the consignments of raw materials. No evidence is produced by the department that his report was a biased one or influenced by any extraneous material and therefore no penalty is imposable on him. 4. As per contra, it is the contention of the Ld.A.R. for the Revenue that the impugned goods are old and used Steel Strips and not in the nature of scrap as per definition of scraps under section 8( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot authorized. While considering the impugned goods not as a scrap he observed that (i) the Dock Officers Report that from visual examination, it is difficult to say whether the goods have been originated from old and used dismantled transformer or not, but goods appear to be scrap which is not definitive. (ii) Chartered Engineer s Certificate stating the whole of the consignment as a scrap is not correct inasmuch as importer himself declared the goods as Silicon Electrical Steel Strips, Scrap. Further it does not give the reasons i.e. length and width of the strips and health which may determine their usability. (iii) He observed that the importer in para 23 of their reply before him have stated that the goods are in the form of strips which originated from old and used transformer. The said importer had also not claimed the benefit available to melting scrap under Exemption Notification No.12/2012-CUS dated 17.3.2012. In view of above he held that the impugned consignments to be usable and as they were used and old Silicon Electrical Steel Strips, their import was not authorized in view of the para 2.17 of the Exim Policy read with the Steel Control Orders stated (supra) and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sers: (a) Shearing of flame-cutting of heavy and long pieces. (b) Compression into bales, particularly in the case of light scrap, using for example a hydraulic press. (c) Fragmentation (shredding) of motor vehicle bodies and other light scrap, followed by separation (which may be magnetic) with a view to obtaining a high density product that is fairly clean. (d) Crushing and agglomeration into briquettes of iron and steel and turnings. (e) Breaking up of old iron articles. Waste and scrap is generally used for the recovery of metal by remelting or for the manufacture of chemicals. But the heading excludes articles which, with or without repair or renovation, can be re-used for their former purposes or can be adapted for other uses; it also excludes articles which can be refashioned into other goods without first being recovered as metal. Thus, it excludes, for example, structural steelwork usable after renewal of worn-out parts; worn railway lines which are usable as pitprops or may be converted into other articles by re-rolling; steel files capable of re-use after cleaning and sharpening. Thus it appears that the Heading 72.04 excludes articles which can b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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