Customs, Excise and Gold Tribunal - Tamil Nadu
Uma Mercantile Pvt. Ltd. vs Commissioner Of Customs on 12 December, 2002
Equivalent citations: 2003(156)ELT110(TRI-CHENNAI)
ORDER
S.L. Peeran, Member (J).
1. Appellant is aggrieved with the Order-in-Original No. 22/2000, dated 8-3-2000 by which the Commissioner of Customs, Chennai has rejected the assessee's declaration pertaining to (81.61 MTs as bushelling scrap and held the same to be as Slates/Plates and re-fixed the value. He has also imposed a fine of Rs. 1,70,000/- besides penalty of Rs. 20,000/-.
2. Counsel submits that there is no dispute pertaining to 1.45 MTs which was considered as stripes with holes and as scrap; 13.01 MTs which have been considered as cut-sheets. The dispute revolves around is 81.61 MTs of scrap which had been imported by the appellant and declared as scrap. The department had drawn samples and had sent the same to National Metallurgical Lab (NML) for obtaining opinion on the same. NML issued a certificate stating that the samples satisfy the requirement of Clause 5.18 of ISI specification and it is a bushelling scarp. The Commissioner however did not accept the report of the NML and held that although the opinion of NML is correct but they had failed to notice that the goods in question were of uniform size and shape and it cannot be considered as scrap. He has noted that going by the dimensions of these pieces they can be used as such and they cannot be said that they are fit only for melting. He has also noted that the importer is a trader and not an actual user and hence the item is required to be categorized as Slate/Plates.
3. Counsel Shri S. Murugappan, Advocate along with Ms. Pramila, Advocate submits that the item satisfy 18:2549:1994 in Clause 5.18 pertaining to bushelling and the samples sent to NML, Chennai confirm the item to be bushelling scrap. Therefore the authority having referred the same to an expert body, cannot deny the same and adopt his own opinion based on his own understanding. He also submits that in another Order-in-Appeal No. C Cus. 13/98, dated 12-1-98 Commissioner has accepted the report of NML and held the item to be metal scrap. He submits that revenue had come in appeal against the said order and this Bench was pleased to reject the revenue appeal in Final Order No. 970/2002, dated 26-8-2002 by holding in Para 2 as follows :
"We have perused the records and gone through the impugned order and the grounds of appeal. We notice that the Commissioner (Appeals) has examined the issue thoroughly in the light of the NML's certificate certifying the item to be non-alloy steel scrap for melting purpose. He has also noted the guidelines for considering the item to be ferrous scrap issued by the ISRI, USA where ISRI Code 207 contains same definition of Bushelling. He has also noted the trade understanding to treat the item as scrap and that such material is not manufactured, marketed or available in the country or in the international market in these dimensions. We have examined the definition appearing in note 8(a) of Section XV of the Customs Tariff Act. We have perused the grounds and find that there is no evidence placed to show that such material as imported is being treated in the international market as prime material and is being used for the purpose other than as scrap. The ld. Commissioner (Appeals) has also taken into consideration the opinion given by an expert body which cannot be assailed without rebuttal evidence. We do find any merit in this appeal. Hence, the revenue appeal is rejected".
He submits that the issue being identical the appeal is required to be allowed insofar as 81.61 MTS of scrap is concerned.
4. DR Shri A. Jayachandran reiterates the departmental contention and submits that the Commissioner's observation that the size of the item is very big and to be considered as Slates/Plates should be upheld.
5. We have carefully considered the submissions and find lot of merit in the contention raised by the counsel. We notice that the Commissioner himself got drawn the samples and sent the same to NML. They have examined the item and had given a clear report that it satisfies the definition of bushelling scrap as specified in Clause 5.18 as per 15:2549:1994. Once an expert body has given a report on the samples, drawn and sent by the Commissioner the same is required to be accepted unless there is rebuttal evidence in the matter. Such rebuttal evidence was not taken by the Commissioner from any other expert body. This Bench in an identical matter where the Commissioner had accepted the NML report which was appealed by the revenue was rejected and the findings recorded in the Final Order No. 970/2002, dated 26-8-2002 as already noted supra. We are not inclined to take a different view in the matter. Commissioner was not justified in rejecting the certificate issued by NML in the matter. In that view of the matter the claim of the appellant to treat 81.61 MTs as metal scrap is upheld. However as they have not contested 13.01 MTs of longer size, the matter has to go back to the Commissioner of Customs, Chennai to re-determine fine and penalty. The impugned order is modified accordingly and the matter remanded to re-fix RF and penalty on 13.01 MTs as it is not contested by the appellant. Counsel submits that the goods are lying in the yard and seeks for a direction to the Commissioner to adjudicate the matter expeditiously. Heard DR. Prayer accepted and the Commissioner is directed to re-adjudicate the matter within 2 months from the date of receipt of this order insofar as 13.01 MTS is concerned. Ordered accordingly.