Custom, Excise & Service Tax Tribunal
M/S Rkg International Pvt. Ltd vs Cce, Chandigarh-I on 1 September, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
SCO 147-148, SECTOR 17-C, CHANDIGARH-160017
DIVISION BENCH
COURT NO.1
Appeal No. C/55407/2014-DB
[Arising out of the Order-in-Appeal No. ASR-CUSTM-PVR-APP-145-14-15 dated 17.07.2014, passed by the CCE (Appeals), Chandigarh]
Date of Hearing: 19.07.2017
Date of Decision: 01.09.2017
For Approval & signature:
Honble Mrs. Archana Wadhwa, Member (Judicial)
Honble Mr. Devender Singh, Member (Technical)
M/s RKG International Pvt. Ltd. Appellant
Vs.
CCE, Chandigarh-I Respondent
________________________________________________ Appearance Shri. Rajesh Rawal, Advocate- for the appellant Shri. V.K.Tehran, AR- for the respondent CORAM: Honble Mrs. Archana Wadhwa, Member (Judicial) Honble Mr. Devender Singh, Member (Technical) FINAL ORDER NO: 61722 / 2017 Per: Archana Wadhwa:
As per facts on record, the appellant filed bill of entry dated 22.01.2013 for the clearance of 244.300 MT of Heavy Melting Scrap (constituted of rail line scrap of length below 1.5 meter) & classified the same under Customs Tariff item 7240 49 00 of Customs Tariff Act, 1975, under the claim of concessional rate of duty in terms of Sr. No. 330 of Notification No. 012/2012-CUS., dated 17.03.2012.
2. However, the Revenue formed an opinion that inasmuch as the goods are rail line length of below 1.5 meter, they are properly classifiable under tariff item 7302 10 90 of Customs Tariff Act, 1975, attracting basic customs duty @ 10%. Accordingly, while adjudicating the matter, the classification, as proposed, was upheld and differential duty of Rs. 16,91,294/- was confirmed.
3. The said order was challenged before the Commissioner (Appeals), who upheld the same. Hence the present appeal.
4. The appellant through their Advocate, Shri. Rajesh Rawal relied upon the Chapter Note 8 of Section XV of Customs Tariff Act, in support to their plea and contended that inasmuch as goods in question are old, used and cut pieces of the rail lines and are not usable as such, they have to be held as waste and scrap. They also relied upon the Boards Circular no. 1/2005-CUS dated 11.01.2005. Further, reliance was placed upon DGFT clarification issued vide letter dated 02.02.2012 holding that the rail lines having length up to 1.5 meter are classifiable under chapter heading 72.04.
5. Ld. Advocate appearing for the appellant, drew our attention to the Tribunal decision in the case of Indo Deutsche Trade Links Vs. CC (Imports), Chennai - 2014 (303) ELT 442 (Tri. Chennai) as also another decision of the Tribunal in the case of Hinduja Foundries Ltd. vs. CC (Import), Chennai - 2013 (288) ELT 571 (Tri. Chennai). It stands held in the said decisions that the article, used and worn out railway lines are not classifiable under chapter heading 73.02, as it does not stand to commonsense that the goods which cannot be used as rail lines having length less than 1.5 meter would be classifiable as rails. The same has been held to be falling under chapter heading 72.04 and entitled to the benefit of the notification in question.
6. However, the Ld. DR appearing for the Revenue submits that the Tribunal decision in the case Indo Deutsche Trade Links stands reversed by the Honble Supreme Court reported as Commissioner of Customs (Sea Port-Import), Chennai Vs. Indo Deutsche Trade Links 2017 (348) ELT 201 (SC). It stands observed by the Honble Supreme Court that since the importer accepted the mis-declaration as also under-valuation, the Tribunal decision was set aside and the order of the original authority was restored. Our attention has also been drawn to the Honble Supreme Courts decision in the case of Union of India Vs. Madras Steel Re-Rollers Association reported in 2012 (278) ELT 584 (SC) wherein the Honble Madras High Court decision reported in 2007 (217) ELT (167) (Mad) as also the Honble Punjab & Haryana High Court decision reported in 2008 (229) ELT (195) P&H vide which the Circular No. 8/2006-Cus dated 17.01.2006 was quashed and set aside, vide which that said decisions of High Courts were set aside and the matters were remanded back to the lower authorities, without expressing any opinion on the merits of the issue.
7. We find that the sole issue required to be decided in the present appeal is as to whether the rail cut length below 1.5 meters are to be assessed under chapter heading 72.04, as claimed by the assessee or the same are classifiable under chapter heading 73.02, as contended by the Revenue. We note that the Board Circular No. 8/2006-cus dated 17.01.2006, supporting the revenues views was quashed by the Honble Madras High Court as also by Honble Punjab and Haryana High Court. The said decisions were put challenged before the Honble Supreme Court and the matter stands remanded. On a query by the bench, Ld. Advocate fairly agreed that such remanded order have not been re-adjudicated and are pending at various level. In view of the above decisions of the Honble Supreme Court in the case of Madras Steel Re-Rollers Association, we deem it fit to set aside the impugned order and remand the matter to the original adjudicating authority for fresh decision in the light of the observations made by the Honble Supreme Court.
Appeal is allowed by way of remand.
(Order pronounced in the open court 01.09.2017 )
Devender Singh Archana Wadhwa
Member (Technical) Member (Judicial)
rt
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C/55407/2014