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TMI Blog2015 (2) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the impugned items are scrap. Commissioner did not think it proper to get the goods examined by an expert or by a person, who dealt in such goods instead of relying on his own perception. - Issue requires fresh adjudication by the Ld.Commissioner and before adjudication representative sample of the imported goods should be examined in presence of the importer s representative by the person/technical experts dealing in the relevant field to ascertain whether the items were usable as such or after their processing, mentioning inter alia the length, width, thickness and other physical/technical character of the representative samples to arrive at the conclusion whether the imported items are scrap or otherwise. Since the facts of the present case are not clear in the light of above discussion hence the examination of applicability of 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 - Matter remanded back - Decided in favour of assessee. - Appeal Nos. Cus. Ap. 76542, 76603/14 - Order No. FO/A/75726-75727/2014 - Dated:- 30-1-2015 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er M/s.Jai Mata Stamping Works and the CHA M/s.J.C.Bose Sons. During the adjudication proceedings, the Ld.Commissioner confiscated the goods and gave an option to the importer to redeem the goods on payment of redemption fine of ₹ 20.00 Lakhs provided they, before clearance, mutilate the goods at their cost so as to convert it into scrap. He imposed penalty of ₹ 10.00 Lakhs on the importer and penalty of ₹ 2.00 Lakhs on the CHA for his role in the present case. Being aggrieved present Appeals are filed before this forum. 3.1 Shri B.K.Singh, Ld.Advocate on behalf of the Appellant M/s.Jai Mata Stamping Works submitted that while treating the imported goods as scrap , the Ld.Commissioner has relied upon the fact that the goods were declared as Silicon Electrical Steel Strips/Scrap and the importer has not claimed the benefit of Notification No.12/2012-CUS dated 17.3.2012 under Sl.No.332 which is applicable for metal scrap. It is the submission that the examination report of dock officers has clearly stated that the imported goods appeared to be scrap. The Ld.Commissioner neither got the goods examined by an expert or obtained trade opinion of a person dealing in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclaration or contravention of the provisions of act or the Customs Tariff Act or of CBEC instruction, penalty is not imposable. It is the contention that there is no evidence to indicate that the said CHA has associated/played active and vital role in clearance of the impugned goods as scrap. 3.8 In view of above facts, the Ld.Advocate prays that the order of the Ld.Commissioner be set aside and the clearance of the goods be allowed. 4. As per contra, it is the contention of the Ld.A.R. for the Revenue that the impugned goods are old and used Silicon Electrical Steel Strips and not in the nature of scrap as per definition of scraps under section 8(a) of section XV of the Customs Tariff Act read with explanatory notes as per HSN. Being used and old silicon steel strips their import is not authorized under the Steel Control Order, 2012, 2014 read with para 2.17 of the Foreign Trade Policy and the Board s Circular dated 09.07.2004. It is submitted that the various case laws cited by the Appellants are not relevant to the present case as they were passed during the period prior to issue of Steel Control Orders. He further submits that in case of Ansun Systems Consulting Pvt.Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y assigned to them: (a) Waste and scrap Metal waste and scrap from the manufacture or mechanical working of metals and metal goods definitely not usable as such because of breakage, cutting-up, wear or other reasons. (b) Powders Products of which 90% or more by weight passes through a sieve having a mesh aperture of 1 mm. 72.04 Ferrous waste an scrap; remelting scrap ingots of iron or steel. 7204.10 - Waste and scrap of cast iron - Waste and scrap of alloy steel: 7204.21 - Of stainless steel 7204.29 - Other 7204.30 - Waste and scrap of tinned iron or steel - Other waste and scrap : 7204.41 - Turnings, shavings, chips, milling waste, sawdust, filings, Trimmings qand stampings, whether or not in bundles 7204.49 - Other 7204.50 - Remelting scrap ingots (A) WASTE AND SCRAP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which is applicable to the scrap . However, this view of the Ld.Commissioner has been challenged before us on the ground that the dock officers have categorically reported the items to be scrap and no further examination of the impugned goods was got conducted by the Ld.Commissioner before arriving at his conclusion that the impugned items are scrap . 9. We also find from the submission of the Ld.Advocate that the Ld.Commissioner did not think it proper to get the goods examined by an expert or by a person, who dealt in such goods instead of relying on his own perception. 10. Under these circumstances, we are of the opinion that the issue requires fresh adjudication by the Ld.Commissioner and before adjudication representative sample of the imported goods should be examined in presence of the importer s representative by the person/technical experts dealing in the relevant field to ascertain whether the items were usable as such or after their processing, mentioning inter alia the length, width, thickness and other physical/technical character of the representative samples to arrive at the conclusion whether the imported items are scrap or otherwise. Since the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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