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TMI Blog2004 (9) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... uty liability at Rs. 1,57,420/-. Detailed examination of the goods revealed the contents of the 7 containers as under :- Sl. No. Description of the goods Quantity(M.T.) 1. Tin Plain sheets 51.433 2. Misprint sheets (width more than 600 mm) 63.531 3. Misprint sheets (width less than 600 mm) 2.040 4. Tin sheet rolls (strip rolls) 9.070 5. Circles 18.040 6. Light Melting Scrap 49.201 Total 193.315 It was further observed that the goods mentioned at Sl. Nos. 1 to 4 above, totally weighing 126.074 M.Ts. were imported in the guise of importing Light Melting Scrap and hence liable to confiscation on account of misdeclaration of description of the goods. These goods were, therefore, seized under Section 110 of the Customs Act, 1962. Insofar as the goods mentioned at Sl. Nos. 5 and 6 above are concerned, the same were believed to have been used for concealing the above items (at Sl. Nos. 1 to 4) and they were seized. Representative samples were drawn from the seven containers and sent to the Chemical Examiner, Custom House, Chennai, who furnished her test report on 18-4-2001. Statements were recorded from the Managing Director of the Company and one Shri D. Pugalendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Customs Act, 1962 (as per details shown in the Annexure); (v) The 144.114 M.Ts. comprising tin plain sheets, tin sheets coils circular plain sheets valued at Rs. 24,47,033.00 are confiscated under Section 111(f), 111(i) and 111(m) of the Customs Act, 1962. However, M/s. Tower Steels (India) Limited are extended an opportunity to get them redeemed on payment of a fine of Rs. 10,00,000.00 (Rupees ten lakhs only); (vi) The 49.201 M.Ts. of light melting scrap valued at Rs. 2,37,468.00 are confiscated under Section 119 of the Customs Act, 1962. However, M/s. Tower Steels (India) Limited are extended an opportunity to get them redeemed on payment of a fine of Rs. 75,000.00 (Rupees seventy-five thousand); (vii) I impose a penalty of Rs. 10,00,000.00 (Rupees Ten lakhs only) on M/s. Tower Steels (India) Limited under Section 112(a) of the Customs Act, 1962; (viii) The amounts paid already are adjusted towards the liability due in terms of this order; the Bank Guarantee furnished shall be enforced; and M/s. Tower Steels (India) Limited shall pay the balance amount due forthwith or else the personal bond executed for a sum of Rs. 1.35 crores shall be enforced to realise the amount du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what they witnessed upon opening of the seven containers. The scrap was found along with circles in one of the containers only. Therefore ld. Counsel submits that the finding of the adjudicating authority that the scrap was used for concealing the rest of the consignment is incorrect. Moreover, the scrap had been correctly declared in the Bill of Entry. Therefore, Counsel argues, the confiscation of the above scrap under Section 119 of the Customs Act is bad. The classification of the remaining items under entries other than Heading 72.04 of the Customs Tariff has been questioned by ld. Counsel on the basis of the definition of "waste and scrap" under Note 8 (a) to Section XV of the Tariff Schedule. The quantum of redemption fine and penalty have also been challenged. Counsel has relied on case law on various points. 3. We have heard ld. SDR also, who has argued in support of denial of the benefit of the Notification, by submitting that no part of the consignment, barring the scrap weighing 49.201 M.Ts., was classifiable under Heading 72.04 of the Customs Tariff and hence not eligible for the benefit of concessional rate of duty under the Notification. She has also argued in suppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Actual use of 49.201 M.Ts. as scrap, claimed by the importer, has not been rebutted and, therefore, no evidence is required to establish the actual use. In these circumstances, we hold that the benefit of concessional rate of duty under the Notification should be allowed to the appellants in respect of 49.201 M.Ts. of scrap and, to this extent, any demand of customs duty on the said goods by denial of the above benefit is not sustainable. 6. Insofar as the classification of the remaining goods is concerned, we would like to peruse the Chemical Examiner's report, which reads as under :- "S. No. 1 (L1S1) Lab No. DSM 10 The sample is in the form of cut metallic sheet with shining surfaces on both the sides. It is composed of magnetic steel coated on both sides with zinc (galvanised) S. No. 2 (L2S1) Lab. No. DSM 10A The sample is in the form of cut metallic white on one side and shining on the other side. It is composed of magnetic steel coated on both sides with tine and one side being further painted. S. No. 2 (L2S1) Lab. No. DSM 10B The sample is in the form of cut metallic sheet white on one side and partly rusted on the other side. It is composed of magnetic steel coated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has to be upheld and we do so. The appellants had classified the goods as scrap under Heading 72.04. Obviously, they had misdeclared the goods in the Bill of Entry. Therefore, the confiscation of the goods under Section 111 of the Customs Act cannot be faulted. 7. However, the goods so classified require to be correctly valued for assessment of duty. The Commissioner has invoked Rule 8 of the Customs Valuation Rules, 1988, after giving a go-by to all the preceding rules, to value the goods on the basis of EDI data. In this connection, the submissions made by the Counsel seem to be impressive. He has pointed out that the contemporaneous imports mentioned in the EDI data were of goods of different description, different quantity and from different countries of origin. The subject import was from Malaysia, whereas the 'EDI imports' were mostly from the Netherlands and the rest from Canada. The contemporaneous (EDI) imports were of much lower quantities than that of the subject import. The descriptions of the goods mentioned in the EDI data were also at variance with what was declared by the appellants in the relevant Bill of Entry. For these reasons, we have to disapprove the EDI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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