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TMI Blog2022 (11) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order of the Tribunal before the Hon'ble Supreme Court under Section 130 E of the Customs Act, 1962 as the dispute relates to both classification and valuation of imported goods which according to the petitioner was Heavy Metal Scrap (HMS) classifiable under heading 7204.29 of the Customs Tariff Act, 1975 - Even a statutory appeal before this court is barred under Section 130 of the Customs Act, 1962 as the dispute relates to both valuation and classification. That apart the Tribunal has given a finding on facts. It has clearly held that the petitioner has not produced any evidence to substantiate that the imported goods were Heavy Melting Scrap (HMS). We cannot re-determine classification and valuation of the imported goods und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated pipes. Surely perforated pipes cannot be called as pipes as held by the High Court. 7. The appellant relied on the decision of the Tribunal in the case of Aggarwal and Company Vs. CC, Kandia-2005 (66) RLT 128 (Cestat-Del.) wherein the Tribunal held that old and used pipes are part of consignment of scrap and if such pipes are found to be serviceable they can be cleared after mutilation. We observe that the Department's case is that the old used and rusted pipes are definitely usable as such and are therefore classifiable as pipes even when they are described as scrap. The appellant has not asked for mutilation and in fact seemed to have agreed that the pipes in question are usable as such and are therefore classifiable as pip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refashioned into other goods without first being recovered as metal. Thus it excludes for example structural steel work usable after renewal of worn out parts, worn railway lines which are usable as pit probs or may be converted into articles by re-rolling; steel files capable of re-use after cleaning and sharpening (page 1076 of HSN). It is clear from this heading notes under Chapter heading 72.04 that one has, to apply the above test to consignments brought as 'melting scrap' when such consignments consist of articles of metal. It is not the appellants case that the impugned goods have passed the above mentioned criteria. Their only ground is that the pipes are old, used and rusted and are therefore classifiable as re-melting scra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n proceeded to determine the value of the goods under Rule 8 after ruling out the proceeding Rules of Customs Valuation Rules. He adopted the value of US$ 150 per metric tone on the basis of prices indicated contemporaneously for similar goods. The Custom authorities noticed a price of US$ 150 for old and rusted pipes. The Commissioner adopted the same price and rejected US$ 110 per metric tone declared by the importers. The appellant did not contest this seriously except pleading that there is no mis-declaration and therefore, the transaction value of US$ 110 per metric tone should have been accepted. In view of our finding that the goods covered by the three Bills of Entry are classifiable under 7304.29 as pipes, we reject the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner and the learned Standing Counsel for the second respondent. 5. We are of the view that the present writ petition is misconceived as petitioner had an alternative remedy against the impugned order of the Tribunal before the Hon'ble Supreme Court under Section 130 E of the Customs Act, 1962 as the dispute relates to both classification and valuation of imported goods which according to the petitioner was Heavy Metal Scrap (HMS) classifiable under heading 7204.29 of the Customs Tariff Act, 1975. 6. The declaration of the petitioner before the Tribunal also in Form No.CA 3 also confirms the same. Sl.No.5 to Form No.CA.3 is reproduced below:- Involves valuation and classification of the goods imported. Differential duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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