Custom, Excise & Service Tax Tribunal
M/S Shiva Ispat Udyog vs Commr. Of Customs (Port), Kolkata on 4 March, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, EAST REGIONAL BENCH : KOLKATA
Cus. Appeal No.94/06
Arising out of Order-in-Original No.Kol/Cus/Port/149/05 dated 19.12.2005 passed by Commr. of Customs (Port), Kolkata.
For approval and signature:
SHRI S. S. KANG, HONBLE VICE PRESIDENT
SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? :
3. Whether His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s Shiva Ispat Udyog
APPELLANT(S)
VERSUS
Commr. of Customs (Port), Kolkata
RESPONDENT (S)
APPEARANCE Shri B. N. Chattopadhyay, Consultant for the Appellant (s) Shri A. K. Sharma, JDR for the Department CORAM:
SHRI S. S. KANG, HONBLE VICE PRESIDENT SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER Date of hearing & decision : 04. 03. 2010 ORDER NO.. Per S. S. Kang :
Heard both sides. The appellant filed this appeal against the impugned order whereby the goods, i.e. old and used railways wagons etc. (Heavy Melting Scrap) imported by the appellants were held to be liable for confiscation on the ground that as per the Import Policy, the old and used goods can be imported only under a specific license.
2. The contention of the appellant is that the appellant made import of Heavy Melting Scrap consist of old and used railways axles from Russia and filed bill of entry claiming benefit of Notification 21/02-Cus. The contention is that the appellants are actual user as having induction furnace and as per the provisions of Notification 21/02-Cus the appellants filed necessary declaration to the effect that the same are to be used of melting purpose and the appellants are also liable to produce certificate by the proper officer regarding specific use. The contention of the appellant is that the impugned goods cannot be treated as second hand railways axles. The Chartered Engineers opinion is not definite. It is also submitted that the value declared by the appellants was accepted by the Customs Authorities. The appellants also relied upon a decision of the Honble Supreme Court in the case of M/s Tata Iron & Steel Company Ltd. Vs. Collector of Central Excise reported in 1995 (75) ELT 3 (S.C.), to submit that the iron & steel scrap composed of arising of steel mills such as old and used rails, billets, plates, axles, channels etc. are to be classified as scrap. The appellants also relied upon the decision of the Tribunal in the case of Global Shiptrade (P) Ltd. Vs. Commissioner of Customs, Kandla reported 2002 (142) ELT 152 (Tri.-Del.). The contention is that in that case, the import was made of old and used rusty pipes and the Revenue wants to classify the same as cut piece of pipes. The Tribunal held that the old and used pipes are to be treated as melting scrap as no evidence is produced by the Revenue that such pipes are serviceable. The contention of the appellants is that in the present case also there is no evidence produced by the Revenue to show that the goods in question are serviceable. Therefore, the impugned order is not sustainable.
3. The contention of the Revenue is that the goods in question are old and used goods and under the Import Policy, specific license is required, therefore, liable for confiscation. The Revenue also submitted that in the impugned order, the Commissioner (Appeals) held that it is common knowledge that no finished product becomes scrap merely on the ground that it is used. An item needs to be unusable/unserviceable to become scrap.
4. We find that the appellants made import of Heavy Melting Scrap consisting of old and used axles. We have seen the opinion of Chartered Accountant dated 29.10.2005. There is no whisper in the expert opinion that the impugned goods are serviceable.
5. Further, we find that the Honble Supreme Court in the case of Tata Iron & Steel Company Ltd. (supra) held that the old and used rails, billets, plates, axles, channels etc, are to be treated as scrap. The Tribunal in the case of Global Shiptrade (P) Ltd. (supra) held that the old and used rusty pipes in the absence of any evidence are serviceable, are to be treated as melting scrap. In view of the above discussions and in view of the decision of the Honble Supreme Court, we find merit in the contention of the appellants. The impugned order is set aside and the appeal is allowed.
(Dictated and pronounced in the open Court)
Sd/ Sd/
( S. K. GAULE) ( S. S. KANG )
TECHNICAL MEMBER VICE PRESIDENT
mm
4
Cus. Appeal No.94/06