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TMI Blog2005 (4) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... t is very hard to believe that the personnel of the Customs Laboratories are not capable of testing whether a given sample is a copper concentrate or otherwise. The foreign suppliers have also declared that the goods as copper concentrate. The Revenue has not produced any evidence to show that there is a collusion between the appellants and the foreign suppliers to declare that the goods are copper concentrate. The NMDC Report is not very conclusive to hold that the impugned goods have not originated from naturally occurring copper. In case of doubt, these points could have been ascertained from the Chemical Examiner, Chennai and also from the Chief Chemist, New Delhi. Thus, the Order-in-Original No. 21/2002 dated 21-8-2002 has no merit. There are no grounds for imposition of penalty on the appellants. The goods, in these circumstances, are not proved as hazardous and they may be released treating them as copper concentrate. We allow all these 09 (nine) appeals. X X X X Extracts X X X X X X X X Extracts X X X X ..... at : - (1) The goods cannot be called as Concentrate of Copper. (2) The goods were actually hazardous coming under purview of Hazardous Waste (Management & Handling) Rules, 1989. In view of the above, the goods require the license from DGFT. Further it was proposed to reclassify the goods under Chapter Heading 2620.30 at higher rate of duty. The goods said to be imported under the above Bills of Entry were detained. Show Cause Notices were issued to the appellant's unit and also Shri Ravi Babu, Executive Director and Smt. Latha Rani, Director of the Company. In all, three show cause notices, two notices were answerable to the Commissioner of Customs & Central Excise, Hyderabad and one notice was answerable to the Commissioner of Customs, Chennai. The appeals in Sl. Nos. 1, 2 & 3 shown in the above tabular column relate to the show cause notices answerable to the Commissioner of Customs & Central Excise, Hyderabad and the goods are absolutely confiscated. As regards the appeals in Sl. Nos. 4, 5 & 6 relate to the show cause notice answerable to the Commissioner of Customs & Central Excise, Hyderabad, but the goods had already been cleared. As regards the appeals in Sl. Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;Natural Justice' have not been followed. (vi) The demands in respect of the appeals in Sl. Nos. 4 to 9 are time barred because the goods were imported during the period from May 2001 to February 2002. All the show cause notices were issued on 18-3-2003. But the Department had facts of these cases when the first show cause notice dated 16-4-2002 was issued. No new facts have been brought on record to show that there was suppression or misrepresentation of the facts. Hence, extended period cannot be invoked as the authorities were aware of import of the past 18 consignments while they issued the first show cause notice dated 16-4-2002. He relied on the following case laws :- (a) ECE Industries Ltd. v. CCE, New Delhi [2004 (164) E.L.T. 236 (S.C.)] (b) M/s. Tuni Textile Mills Ltd. v. CCE, Vapi [2004 (174) E.L.T. 51 (T-Mum.)] 4. The learned JCDR urged the points in the Order-in-Original. Citing HSN Notes, she submitted that the imported items are not at all Copper Concentrate. Normally when the naturally occurring ore containing copper components is subjected to various treatments for removal of foreign matter, the same becomes copper concentrate. In other words, the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. Hence he has confiscated them absolutely under Section 111(d) and 111 (m) of the Customs Act, 1962. Further he has ordered a destruction of the impugned goods, in the manner as prescribed in the Hazardous Wastes (Management and Handling) Rules, 1989 at the cost of the appellants. Further he has imposed a penalty of Rs. 4,00,000/- under Section 112(a) of the Customs Act, 1962 on M/s. Magus Metals Ltd. He has also imposed a penalty of Rs. 2,00,000/- on Shri K. Ravi Babu, Executive Director and Rs. 1,00,000/- on Smt. Latha Rani, Director of the Company under Section 112(a) of the Customs Act, 1962. 7. In coming to the conclusion that the impugned goods are hazardous, the Adjudicating authority has relied on a Test Report from EPTRI. We have gone through the EPTRI Test Report on record. The EPTRI means Environment Protection Training Research Institute. A comprehensive analysis report of EPTRI contains the following parameters :- (i) Physical Parameters (ii) Physico-Chemical Parameters (iii) Chemical Parameters (iv) Concentration of Inorganic Parameters [As per schedule 2 & 3 of HW (M&H) A Rules, 2000] (v) Concentration of Organic Parameters [As per schedule 2 & 3 of HW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " 10. The EPTRI Test Report letter dated 7-3-2002 indicates that the impugned goods fall under Class B 3 of Schedule 2. Class B 3 of Schedule 2 reads as follows :- "Waste containing principally organic constituents, which may contain metals and inorganic materials." 11. When we read the analysis report, no organic material has been noticed. No organic constituents had been detected. The test results in each case indicate in 'ND' (Not Detected) whereas B 3 of the Schedule 2 is for wastes contain principally organic constituents. Moreover, Schedule 3 of the Rules lists various hazardous characteristics. They are as follows :- "H1 Explosives H3 Flammable liquids H4.1 Flammable solids H4.2 Substances or wastes liable to spontaneous combustion H4.3 Substances or wastes, in contact with water emit flammable Gases H5.1 Oxidizing H5.2 Organic Peroxides H6.1 Poisonous (Acute) H6.2 Infectious substances H8 Corrosives H10 liberation of toxic gases in contact with air or water H11 Toxic (delayed or chronic) H12 Ecotoxic H13 Capable by any means, after disposal, of yielding another material, eg., leachate which possesses any of the cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pper bearing minerals which are having higher densities i.e. more than 3.5". 15. The contention of the adjudicating authority based on HSN notes and also Chapter Notes (Chapter 26 of the Tariff) is that the copper concentrates are normally obtained from the naturally occurring copper ore after subjecting them to various processes. Since the NMDC test report shows that there is no presence of naturally occurring copper mineral, the impugned goods are not copper concentrate. The appellants had been importing similar goods in the past through Chennai Port. The goods had been provisionally cleared after drawal of samples. The samples were tested in Customs House Laboratory, Chennai. The test reports indicate that the goods imported may be considered as copper concentrate. The report of Chemical Examiner, Chennai Customs House reads as follows :- "The sample is in the form of brown coloured moist cake. It is composed of oxides of copper and acid insoluble matters. It may be considered as copper concentrate. Percentage of the sample is 27.1%." 17. In fact, prior to the detention of the impugned goods, 18 Bills of Entry were filed and all the goods were finally assessed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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