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TMI Blog2022 (1) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... . When similar import declared as HMS and reclassified and reassessed as CRGO sheets were ordered to be released after mutilation and payment of duty, there are no reason to interfere with the view taken by the Commissioner (Appeals) directing provisional release of the impugned goods. Import of goods in the nature of old and used gas cylinders - main objection raised by Revenue is that the Gas Cylinder Rules prohibit import of gas cylinders which are filled or intended to be filled with any compressed gas - HELD THAT:- The Commissioner (Appeals) has ordered for mutilation of these goods so as to render them as scrap. On such score, the contention raised by the Revenue adverting to Gas Cylinder Rules and Explosives Act is without any basis - the view taken by the Commissioner (Appeals) to allow provisional release of the goods is legal and proper. Legality and propriety of the conditions imposed in the impugned order for provisional release of the goods - HELD THAT:- The reliance placed by the Commissioner (Appeals) to impose the condition to furnish BG is highly misplaced and misconstrued. In both these decisions, the Hon ble Courts have directed to pay 20/30 percent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 300 48223.5 3 3743346 dated 28.04.2021 IAAU2680025 Heavy Melting Scrap ISRI Code 200 to 206 28 300 8400.0 4 3921658 dated 12.05.2021 CMAU1569439 CPIU8238256 GATU1181242 TSAU2701357 Heavy Melting Scrap ISRI Code 200 to 206 95.15 300 28545.0 4. On examination of the goods it appeared that the importer had misdeclared the goods and the summary of the examination is as under:- Sr. No. Bill of Entry No. date Container No. Examination/Observation of the DRI officer 1 3743347 dated 28.04.2021 BAXU2661023 Examination done vide Panchnama dated 07.05.2021, 21.05.2021 24.05.2021. The imported goods appeared to be Old Used empty gas cylinders of various sizes and Table Tennis rackets apprx. 13544 pairs. Goods were detained and Supardari of the goods were handed over to port officials o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of Indian Standard. As per CBIC‟s instruction dated 9.7.2014 issued under F.No. 450/71/2014-Cus IV, it is clarified that import of second/defective/old and used CRGO sheets, strips and coalis not permitted. The Technical Division, Ministry of Steel has issued an OM dated 13.10.2020 with regard to import of substandard and used oily CRGO laminations into the country. 7. Again, as per the Explosives Act, 1884 r/w the Gas Cylinder Rules 2016, no person shall import any gas cylinders filled or intended to be filled with any compressed gas except under and in accordance with the conditions of license granted under the Foreign Trade (Development Regulation) Act, 1992. 8. The goods were examined by a Chartered Engineer and in his report dated 4.6.2021, it was stated as under: DESCRIPTION OF GOODS DECLARED QTY In Kgs ASCERTAINED QTY In Kgs SUGGESTD CIF PRICE/MT Old used Cylinders -------------- 20786 Kg USD 350/MT New Tennis Bat ------------- 13544 Pcs (3425 Kgs) INR 50/PC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal release of the goods after mutilation of the same, he has imposed a condition to furnish Bank Guarantee of 30% of the value of the goods which would be ₹ 38,88,717/- . This condition is highly harsh and contrary to the view taken in similar imports. 14. He explained that the importer is engaged in import as well as trading of Iron and Steel and is registered with the Central Excise / GST Department. They have been importing raw material for the past several years. The present consignment were imported from UAE. The goods declared as HMS were accompanied by documents in the nature of invoice, packing list, Bill of lading and pre-inspection certificate. The goods were examined by the pre-inspection agency duly authorized by the Director General of Foreign Trade, who after examining the goods had certified the goods as Heavy Melting Scrap‟. On arrival of the goods, the appellant filed Bill of Entries for clearance of the goods on the basis of these documents. After examination, the goods were detained holding that the goods are old and used CRGO sheets and old and used empty cylinders. 15. The ld. Counsel submitted that the Revenue did not obtain any expert opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods after mutilation, this condition could not have been imposed. The reliance placed on the direction in the case of Max Enterprises vs Deputy Commissioner of Customs Chem 2019 (367) ELT 753 (Mad) is also not proper. 20. The Ld. Counsel relied on the directions in the following cases: a) Amit Enterprises vs. UOI 2011 (269) ELT 314 (P H) b) Shilpi Crafts vs UOI 2014 (314) ELT 48 (P H) c) Gaurav Electronic vs Additional Commissions of Customs Sahenwal 2015 (324) ELT 149 (p h) 21. The Ld. Counsel submitted that the goods are lying detained at the port of ICD CONCOR, Ludhiana and the importer is incurring huge ground rent charges. It has put him to huge financial loss. He prayed that the appeal may be allowed. 22. The Ld. AR Ms. Swati Chopra appeared and argued for the Revenue. She submitted that the Commissioner (Appeals) has erred in allowing provisional release of the CRGO sheet, which are prohibited goods in terms of CBE‟S instruction dated 9.7.2014 issued under F.No. 450/1/2014 Cus IV. It is categorically mentioned therein that the import of second/defective/old and used CRGO sheet, strips and coil in shape and size are not permitted. The im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , further the presence of oil in the said material strengthen the argument of the appellant that the same has been used before and therefore in view of the above, prima facie the impugned goods appears to be scrap. Again in page 5 of the impugned order, the Commissioner (Appeals) has relied on the order passed by Jt. Commissioner, Custom Ludhiana vide O-I-O LDH-CUS-JC-RRG-127-18-19 dated 5.3.2019 by which goods alleged to be CRGO Sheets were allowed to be cleared. In that case the entire consignment was ordered to be mutilated and rendered as scrap before allowing to be redeemed by the importer therein. 26. The Commissioner (Appeals) has thus directed to subject the impugned goods to mutilation before release of the same .When similar import declared as HMS and reclassified and reassessed as CRGO sheets were ordered to be released after mutilation and payment of duty, we do not find any reason to interfere with the view taken by the Commissioner (Appeals) directing provisional release of the impugned goods. 27. Coming to the issue of import of goods in the nature of old and used gas cylinders, the main objection raised by Revenue is that the Gas Cylinder Rules prohibit imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petition upon the Petitioner depositing an amount equivalent to 20% of the difference in the provisional duty as sought to b assessed by the Respondent and on the basis of the value Prima facie determined by the Respondent, that is US $ 1640/PMT and the value declared by the Petitioner, that is between US$ 870/PMT and US$ 1000/PMT. The Petitioner will, of course, be also obliged to execute a bond to pay the balance of the differential duty as and when it I finally assessed. The Respondent will issue a show cause notice to the Petitioner before taking a final view in the matter. 31. The case of Max Enterprises (supra) the Hon‟ble High Court in para 14 observed as under: 14. The cases cited at the Bar indicate the consistent view that release of the consignments be permitted in terms of Section 110A of the Act upon condition that the petitioner directed to remit 30 to 50% of 30% of the differential duty and execute a personal bond for the remaining 70%., upon remittance and furnishing of which, the goods shall be released forthwith. On the aspect of underinvoicing, the Department is at liberty to initiate proceeding for adjudication that will be concluded after hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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