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TMI Blog2018 (5) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... e bills of entry. Such scrap was purchased by the appellant from one M/s. Padamshree Globe Tradelink Pvt. Limited on high see sale basis. The bills of entries were filed under claim of exemption under Notification No. 12/2012 dated 17.03.2012 (Serial No. 332), at declared price as Rs. 380 per MT. 3. The consignment was examined by the Anti Smuggling officers of Ludhiana unit and it was found that the same also contained re-rollable materials, apart from the Heavy Melting scrap. As such, a view was entertained that inasmuch as, re-rollable material has been imported along with scrap, the benefit of exemption notification is not available and the same has to pay duty, in terms of serial No. 330 of Notification No. 12/2012. Accordingly, proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lading, describing the goods as Heavy Melting scrap. In such a scenario, to attribute any motive to the appellant to mis-declare the goods is neither warranted nor justified, inasmuch as the appellant would not be knowing the contents of the containers. As such, any imposition of penalty upon them is not justifiable. 7. As regards confiscation of the goods, we note that the appellant had taken a categorical stand that re-rollable material is not usable as such and was in the nature of waste and scrap only. It is seen that the adjudicating authority has also classified the same under the heading which is of waste and scrap. As the entire documents show the consignment to be a Heavy Melting scrap, the presence of re-rollable material will no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 155.490 MT 62.196 MT 93.294 MT 2 C/60038/2013 153.420 MT 76.710 MT 76.710 MT 3 C/60040/2013 132.910 MT 53.164 MT 79.746 MT 11. It would be evident from the above table, that for appeals at S.No.1 and Sl.No.3, re-rollable scrap which was not declared was more than the HMS. In Sl.No.2, the re-rollbale scrap found on examination was 50% of the consignment. The fact that the goods were purchased on high sea sale basis and the documentation like packing list, bill of lading and invoices in the name of high sea seller showed HMS cannot obliterate the fact that the goods which were declared as HMS in Bill of Entry but on examination were found to contain 50% or more percentage of re-rollable steel and were thus mis-declared. The ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as prescribed by law to ascertain end use or a provisional bond was taken for chemical testing by assessing officer. 12. As for penalty, since the goods are held liable to confiscation, penalty is justified on the importer. However, as the quantum of penalty is on higher side, the same is reduced to Rs. 50,000/- in each appeal. (DEVENDER SINGH) MEMBER (TECHNICAL) 13. As there are contrary views and difference of opinion between the Members, therefore, the matter be placed before the Hon'ble President to appoint the Third Member for resolving the following issues:- DIFFERENCE OF OPINION (1) Whether in the facts and circumstance of the case, when the goods imported contained 50% or more of re-rollable scrap against the declaration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same, it cannot be treated as mis-declaration. He further submitted that though he has accepted before original authority that it is rerollale material that does not establish any mis-declaraton. 17. Having considered rival submissions and on perusal of record and on going through the Final Order of this Tribunal in the case of Kuber Casting Pvt.Ltd. (supra),, I find that in similar circumstances, this Tribunal has held that if the goods booked for importation are heavy melting scrap and on receipt of goods, it is found that the some quantity of rerollable scrap is received then it does not amount to misdeclaration. I, therefore, agree with the opinion of Member (J). 18. With the aforesaid opinion, I return the file back to the Division B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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