Madras High Court
Commissioner Of Customs (Exports) vs M/S.Cmi Metal Recycling (India) Pvt. ... on 21 November, 2014
Bench: R.Sudhakar, R.Karuppiah
In the High Court of Judicature at Madras Dated: 21.11.2014 Coram The Honourable Mr.JUSTICE R.SUDHAKAR and The Honourable Mr.JUSTICE R.KARUPPIAH Civil Miscellaneous Appeal No.1333 of 2007 Commissioner of Customs (Exports), Custom Huse, No.60, Rajaji Salai, Chennai - 600 101. .... Appellant Vs. M/s.CMI Metal Recycling (India) Pvt. Ltd., Irulapalayam, Kuthambakkam Village, Chennai - 602 107. .... Respondent APPEAL under Section 130 of the Customs Act 1962 against the order dated 16.3.2006 made in Final Order No.207 of 2006 on the file of the Customs Excise and Service Tax Appellate Tribunal, Chennai. For Appellant : Mr.P.Mahadevan Standing Counsel For Respondents: B.Satish Sundar ------------- J U D G M E N T
(Delivered by R.SUDHAKAR,J.) This Civil Miscellaneous Appeal filed by the Revenue as against the order of the Customs, Excise and Service Tax Appellate Tribunal was admitted by this Court on the following substantial question of law:
"Whether the Appellate Tribunal is correct in holding that the impugned items are "electronic scrap" on the basis of the invoices of M/s.Canon Singapore raised in favour of M/s.Cimelia Singapore against the expert opinion of Chartered Engineer who has done the detailed examinations of the goods?"
2. The respondent/assessee herein is a 100% Export Oriented Unit, engaged in the business of importing Mixed Electronic Scrap (photocopier scrap) for the purpose of recycling and extraction of certain precious metals out of these scraps and consequently they export the extracted precious metals and refurbished parts. They are allowed to import duty free scrap in question and certain consignments were imported on the value declared. Not satisfied with the valuation of the items and the declaration given by the assessee that it was scrap, the Commissioner of Customs passed an order for enhancing the value holding that there is misdeclaration of description and value in terms of Section 111 (m) of the Customs Act, 1962 and gave an option to redeem the goods on payment of fine of Rs.8.00 lakhs under Section 125 of the Customs Act and also imposed penalty of Rs.1.00 lakh under Section 112(a) of the Customs Act.
3. The assessee did not exercise the option of redemption and the matter was pursued by the assessee/importer before the Tribunal contending that the goods that were imported from the foreign country are categorised as scrap and have no value and the import is based on the invoices of Cimelia Singapore, who is the agent of the original manufacturer M/s.Cannon, Singapore.
4. The Department relies upon the Chartered Engineer's certificate to contend that the value is higher and the importer had misdeclared the description and value of the impugned goods in order to minimize their export obligation and with a view to divert the imported machines for local sale.
5. The assessee/importer objected to the said contention stating that the importer is a 100% Export Oriented Unit and there is no question of local sales. Insofar as Chartered Engineer's certificate is concerned, it was urged by the importer that the certificate did not give reason for categorising the old machines as those requiring minor repairs, extensive repairs and those from which a few components could be retrieved. It was not based on proper assessment and Chartered Engineer's certificate is presumptory in nature. The Tribunal while accepting that the Commissioner has to determine the value of the goods to a great extent guided by the certificate given by the Chartered Engineer, in the absence of relevant particulars, which have been set out in paragraph 9 of the order, the Tribunal thought it fit that the Commissioner has to redo the exercise and obtain proper certificate with complete particulars on the nature of goods imported for the purpose of proper assessment of the value and readjudicate the case. The order of the Tribunal in paragraph 9 and 10 reads as follows:
"9.In a case like this, it is unavoidable that the discretion of the Commissioner in determining the value of the imported goods is, to a great extent, guided by the certificate furnished by the Chartered Engineer. However, in the absence of particulars such as the value of the machine when new, its year of manufacture, whether the item is in working condition or not, its physical condition, its expected residual life etc. in each case, or at least in categories of very similar such machines, in the certificate of the Chartered Engineer, the Commissioner should not have accepted the certificate. The Commissioner may obtain a proper certificate with complete particulars of the machines involved for a proper assessment of their values and re-adjudicate the case. In the circumstances we decide that the matter should go back to the Commissioner for proper valuation of the impugned goods supported by a Chartered Engineer's certificate complete in available particulars and his opinion based on them.
10. We therefore order that the issues relating to the goods covered by the LOP may be decided afresh. The appellant undertakes to cooperate in the de novo proceedings for a quick decision. The Commissioner shall decide the case within a period of three months of receipt of a certified copy of this order."
6. Aggrieved by the order of the Tribunal remanding the matter to the Commissioner, the Department has filed the present appeal.
7. Heard learned Standing counsel appearing for the appellant and the learned counsel appearing for the respondent and perused the materials placed before this Court.
8. We find that there is no specific finding by the Tribunal as has been raised in the substantial question of law. All that the Tribunal has ordered is remanded the matter back to the Commissioner to redo the exercise after giving detailed analysis on the issues pointed out in paragraph 9 of the order. Hence, the substantial question of law does not requires to be answered in a case of open remand. All other findings of the Tribunal are not challenged. Accordingly, we find no question of law arises for consideration in this appeal.
9. In the result, the order of the Tribunal is confirmed and this Civil Miscellaneous Appeal is dismissed. No costs.
Index :Yes/No (R.S.,J) (R.K.,J)
Internet:Yes/No 21.11.2014
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R.SUDHAKAR,J.
AND
R.KARUPPIAH,J.
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To
The Customs Excise and Service Tax Appellate Tribunal,
South Zonal Bench, Chennai - 600 006.
C.M.A.No.1333 of 2007
21.11.2014