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TMI Blog2018 (5) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... The basis for the Chartered Engineer to arrive at such conclusion is that in common parlance the length of TMT rods in the market is from 11 to 12 mtrs (33 to 36 ft) and the length of the rods imported range from 3 ft to 15 ft and are cut end pieces of assorted sizes. Since the cut ends do not have proportionate size they have very limited usage - we fail to understand how this can be the basis for concluding that the goods are not HMS, we are not able to find any cogent reason for discarding the pre-inspection certificate in toto. The Jurisdictional High Court in the case of CC Chennai Vs Kamatchi Sponge Power Corpn. Ltd. [2016 (3) TMI 220 - CESTAT CHENNAI] in similar set of facts had upheld the order passed by Tribunal, which set aside confiscation and penalty. The impugned goods are Heavy Melting Scrap only - appeal allowed - decided in favor of appellant. - C/405/2010, C/436/2010 - Final Order No. 41362-41363 / 2018 - Dated:- 1-5-2018 - Hon ble Ms. Sulekha Beevi C.S. Member ( Judicial ) And Hon ble Shri Madhu Mohan Damodhar, Member ( Technical ) Shri M.S. Nagarajan, Advocate For the Appellant-Importer Shri R. Subramaniyan, AC (AR) For the Revenue ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions which can be broadly summarized as under : i) The lower authorities have not considered the fact that the importer is a regular importer of HMS, purchase order for supply of HMS for use in their factory, the Proforma invoices described the goods as HMS, the invoices issued by the supplier described the goods as HMS/Re-Rollable scrap, Pre-shipment Test Reports by the internationally accepted testing agency M/s.Worldwide Inspection Services SARL certified that the imported goods were metallic scrap / seconds / defective as per internationally accepted parameters for such classification. Based on these documents, the importers had filed the Bills of Entry and claimed exemption from Basic Customs Duty under Notification No.21/2002-Cus. dated 1.3.2002 (Sl.No.200). The importers had evidently no knowledge that the imported goods comprise of HMS and cut pieces of TMT Rods. The importers also requested for mutilation of the rods before clearance. Customs did not allow mutilation. In the absence of mala fide intention the refusal of mutilation of the goods, confiscation and penalty are not justified. ii) In the absence of any evidence of undervaluation of the imported goods th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be made unless the owner of the goods or such person is given a notice informing of the grounds on which it is proposed to confiscate the goods or to impose a penalty. Discernably, Section 124 of the Act seeks only the action of confiscation of goods and / or imposition of penalty. To recover duties not levied /not paid/ short paid / short levied / erroneously refunded, a notice has to be served on the person chargeable with duty or interest etc. under Section 28 of the Act. In a situation where it is intended to recover or demand duty from any person, whether for reason of proposed enhancement of value of declared goods, duty short levied, short paid, erroneously refunded etc. and at the same time it is intended to confiscate any offending goods related to such proposed demand of duty along with imposition of penalties provided in Chapter XIV of the Act. Such a combined notice will necessarily have to be issued invoking provisions of both Section 28 and Section 124 of the Act. On perusal of the SCN though the section under which it is issued is under Section 124, the allegations made out as well as the proposal is for recovery of duty short paid. In Fortis Hospital Ltd. case re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Revenue. The relevant paragraphs of the Hon ble High Court of Madras order are reproduced as under :- 7. As pointed out earlier, the only point that has to be decided in the present Civil Miscellaneous Appeal is as to whether the respondent is liable to pay duty on the basis of scrap materials or on the basis of usable things. 8. The entire argument put forth on the side of the appellant hinges upon the report filed by the Commissioner as well as the statement alleged to have been given by one of the partners of the respondent. 9. It has been conceded on the part of the appellant that the Commissioner has not noted down the features of the things which are in question. Of course, it is true that one of the partners of the respondent has given a statement, wherein, he has admitted about the existence of some wires, etc. 10. At this juncture, the learned Counsel appearing for the respondent has contended that those wires are not in cable forms and it is nothing but small wires. Under the said circumstances, the authority has permitted the respondent, to get the goods in mutilated form and therefore, the contention put forth on the side of the appellant cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd prevails over. We also find that the appellants are registered Central Excise assessee having foundry for manufacture of billets, TMT bars as evident from the Central Excise registration and paying Central Excise duties on the final products. It is confirmed that appellant is not a trader of imported goods in the guise of scrap for trading purpose. Therefore, bona fide of the appellant is justified being actual user. We also find that pre-shipment inspection certificate clearly indicates that HMSS supplied was unshredded . Therefore, by respectfully following the ratio of the Hon ble Madras High Court decision and this Tribunal decision (supra), we uphold that the goods imported are Heavy Melting Steel Scrap and we do not find any infirmity in the order of LAA. Accordingly, the impugned order is upheld and we direct the Customs to allow clearance after mutilating the goods under Customs supervision as per LAA s order. Accordingly, the Revenue s appeal is rejected. 6. Appreciating the facts and evidence, we are of the considered view that the impugned goods are Heavy Melting Scrap only. The impugned order is set aside. The appeal C/405/2010 is allowed with consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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