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TMI Blog2019 (4) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... C/290/2012 - A/88329/2018 - Dated:- 4-12-2018 - Mr. S.K. Mohanty, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical) Shri Brijesh Pathak, Advocate, for appellant Shri Manoj Kumar, Assistant Commissioner (AR), for respondent ORDER Per: Sanjiv Srivastava This appeal is directed against the order in appeal No 152/MCH/ADC/ Gr-VII C/2012 dated 05.03.2012 of Commissioner Custom (Appeal) Mumbai. By the said order Commissioner (Appeal) held as follows: 14. I have gone through the findings and observation of the lower authority and also submissions made by the Appellant. It is on record that Personal Hearing was attended by Appellant. Hence the contention that order was ex parte is false. Further, it is also seen that the Appellant also has agreed with the examination reports of SIIB(X) and Chartered Engineers certificate. The certificate clearly states the goods are prime and not defective. On being asked, the Appellant could not produce any more documents/ evidence from the overseas supplier as regards to their say that the subject consignment is as secondary defective seamless pipes except declaration on invoice/ Bill of Entry and lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bai. By the Test Report dated 12.03.2007 issued under Lab No 30/SIIB(X) dated 19.01.07, DYCC stated The sample is a cut piece of stainless steel pipe (non magnetic) (Nickel 7.4%, Chromium 15.1%) and it does not confirm to the specification AISI 304 types of non magnetic steel . In respect of second sample, Test Report dated 12.03.2007 issued under Lab No 31/SIIB (X) dated 19.01.2007, DYCC stated The sample is a cut piece of stainless steel pipe (non magnetic) (Nickel 7.7%, Chromium 14.6%) and it does not confirm to the specification AISI 304 types of non magnetic steel . DYCC also stated in both the reports that it is not possible by chemical test to state whether it is secondary/ defective seamless pipe or otherwise. 2.4 The samples were thereafter forwarded to VJTI, Matunga, Mumbai on 29.03.2007 for determination of chemical composition and their opinion regarding grade of steel. VJTI in their Test Report dated 16.04.2007 stated The sample S S Secondary defective seamless pipe 304 is not in accordance with AISI (American Iron Steel Institute) Designation System and that the % of composition tested are: 1) Carbon=0.058%, 2) Chromium=17.24%, 3) Nickel = 8.03%, 4) Molybd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Counsel submitted that in the present case apart from the Chartered Engineer visual examination and inspection report no other evidence has been produced by the revenue on basis of which it can said that the goods imported were not as per the declaration made by them. Even the test reports obtained from Deputy Chief Chemist CRCL Mumbai in respect of the two samples support their claim. Also the test report from VJTI Matunga obtained by the revenue is contrary to the stand taken by the revenue. The contract and letter of the supplier dated 06.01.2007 also endorse the view that the imported goods were defective. Lower authorities have proceeded to decide that matter contrary to the evidences available on record. They also rely on the decisions as follows to support their contentions: i. Mehta Steel Corporation [2002 (150) ELT 188 (T-Mum)] ii. Shankar Trading Co [1999 (106) ELT 456 (T)] iii. Opus Technologies [2004 (168) ELT 72 (T-Chennai)] iv. Saraswati Repowering Works [2004 (168) ELT 258 (T-Mum)] 4.3 Arguing for the revenue learned Authorized Representative reiterated the orders of lower authority and stated that the chartered Engineer Certificate after visual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.058%, 2) Chromium=17.24%, 3) Nickel = 8.03%, 4) Molybdenum = 0.3%. 5.4 Appellants have on the basis of the invoice and contract with the overseas supplier made the declaration on the Bill of Entry. Appellants have also produced a certificate dated January 6, 2007 from the overseas supplier reproduced below: 5.5 Hon ble High Court of Delhi has in case of Indian Steel Corporation [1982 (10) ELT 877 (Del)] held as follows: 14. Now, the next question relates to the value of the goods. The Customs Act, Sections 14 and 15, prescribe the methods of determination of value. The combined effect of these sections is that the value is the price at which the goods in question are on the date the bill of entry is presented ordinarily sold or offered for sale for delivery at the time and place of importation, in the course of international trade. The Customs have valued the goods at $ 2650 per M.T. on the basis of several invoices of the same suppliers and one or two of the Japanese producers. These rates vary from $2050 to $2650 per M.T. and are for prime quality steel. It is true that the Salem Steel Plant analysed a few samples out of the five consignments and reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the exception as contained in Rule 4(2) of the Customs Valuation Rules, the transaction value is binding under Rule 4(1) and cannot be discarded. We therefore find force in the submission made by the ld. Consultant Shri K.L. Rekhi assisted by Shri A.S. Sundararajan. Their case is fully covered by the judgment rendered by the Tribunal in the case of CC, Calcutta v. Bharat Teachest Industries (supra) and the Apex Court judgment rendered in the case of Eicher Tractors (supra). Since there is no mis-declaration the goods are also not liable for confiscation under Section 111(m) of the Customs Act. We, therefore, set aside the redemption fine of ₹ 10 lakhs imposed under Section 125 of the Customs Act, 1962. Since there is no misdeclaration or suppression from the Department no penalty can also be imposed on them in view of the judgment rendered by the Apex Court in the case of HMM Ltd. (supra) under Section 112(a) of the Customs Act, 1962. We also set aside the order of enhancement of unit price of Tin Free Sheets and Tin Plates in terms of Rule 8 of the Customs Valuation Rules, 1988. 5.8 Thus we do not find merits in the order of Commissioner (Appeal) and Adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X
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