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TMI Blog2005 (3) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... pes. The appellant agreed to pay the differential i.e. difference between the duty leviable on pipes and the one leviable on scrap, and deposited the differential duty. The value of the goods was revised to US $ 150 per metric tone from US $ 110 per metric tone declared by the importer. 2.The Commissioner while adjudicating the case classified the impugned goods under Chapter heading 7304.29 as pipes, determined the value as US $ 150 per metric tone confirmed the differential duty, confiscated the goods in question under Section 111(m) of the Customs Act and imposed penalty on the importer. Hence this appeal. 3.The main contention of the appellant is that the imported goods consisted HMS, that the used old and rusted pipes cannot be cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003 (156) E.L.T. 458 (P H) wherein the High Court held that when imported goods consist of rusted, pitted and perforated and used and repaired earlier, they cannot be considered as usable pipes. We observe that in the absence of examination report in the present case it is not possible to come to any conclusion as to the state of the pipes under import. The only thing that is evident from the impugned order is that the pipes described as HMS are old used and rusted. Such pipes could be still used as pipes. The High Court was dealing with perforated 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 v. CC, Kandla - 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this fact, he argued. The first principle of classification, he submitted, is that the goods under import should be assessed in the condition in which they are imported. The pipes in the present case have not been converted into scrap as defined in Note 6 of Section XV. We have carefully examined the rival contentions. We observe that Chapter heading 72.04 (Re-melting scrap) excludes articles, which with or without repair or renovation can be re-used for their former purpose (emphasis added) or can be adapted for other uses, it also excludes articles which can be 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought as scrap is scrap or otherwise depends on the facts of each case. In the present case, the Commissioner finds the pipe as definitely usable as such. The appellants have not produced any evidence in the form of an examination report to disprove their finding. We therefore hold that the pipes in question are classifiable in the appropriate heading and cannot be classified as HMS. 9.The next issue pertains to valuation of the impugned goods. The Commissioner rejected the transaction value on the ground that the goods in question were mis-declared. He then 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 ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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