Customs, Excise and Gold Tribunal - Mumbai
Varun Aluminium Industries Ltd. vs Commissioner Of Customs, Nava Sheva on 2 November, 2001
Equivalent citations: 2002(141)ELT89(TRI-MUMBAI)
JUDGMENT G.N. Srinivasan, Member (J)
1. These two appeals are taken up for hearing. Penalty imposed on the appellants is paid. In the impugned orders the adjudicating authority i.e. Commissioner of Customs, Nava Sheva, has imposed a penalty of Rs. 20,000/- in each case and fine of Rs. 2 lakhs on the ground that the imported goods do not come within the parameters fixed under ISRI Code, i.e. Taldork and Taldon. In Appeal C/604/01, the question involved is about the import of goods covered under Taldork which has been defined in the pamphlet issued by Institute of Scrap Recycling Industries, Inc., i.e. Scrap Specification Circular 2001. In the other case, i.e. Appeal C/556/01 the goods involved were also taldork and Taldon. The case of the department is that the goods imported do not come within the parameters fixed under the definition of Taldork and Taldon. During the course of the argument, my attention was drawn to the judgment of the Tribunal in the case of Alex Cables Ltd. and Arfin Enterprises Ltd. v. CC (Appeals C/1060 & 1061/2000, Order No. C-II/759-762/WZB/2001 dated 20.3.2001 whereunder we have upheld the order passed by the lower authority and reduced the penalty.
2. During the course of argument, Shri S.V. Kanitkar invited my attention to what is contained in the provisions of the Scrap Specifications Circular 2001 given by ISRI which reads as under:-
"Parties to a transaction may specify particular variations or additions to these specifications, as are suited for their specific transactions and for their individual convenience. Any deviation from the standard specifications, however, should be mutually agreed to, and so stipulated in writing, by the parties to the transactions."
3. In this case it is case of the appellants that there has been variations to the specifications and have been mutually agreed to. The appellants invited my attention to the letter dated 17.2.2001 written by Crown Metals, Bahrain addressed to Ambaji Metal Industries who have sold the goods to the appellants on high sea basis. The relevant portion of the letter reads as under:-
"This is with reference to your request that our Aluminium Scrap UBC should have the density of 22lbs per cubic foot minimum. We are unable to supply the same as our machine does not produce so low density material and then the weight in the container will be unaffordable. You are requested to kindly accept our standard material with density of 25 to 40 lbs per cubic foot.
You are requested to kindly accept our standard material by considering our good business relations."
The reply to the above letter by Ambaji Metal Industries to Crown Metals reads as follows:
"Please refer to your letter dated 17.2.2001 and have noted the contents. We are ready to accept the material. You are requested to kindly despatch the material at the earliest."
4. This has been shown to the adjudicating authority which is referred to in Order No. 74/01 dated 17.4.2001 in Appeal C/556/01. So this is not a new evidence which has been considered by the Commissioner. I am of the view that this may vary the facts of the decision rendered by the two member bench in the above case, but however I cannot decide this case when there is a decision rendered by two member bench. I therefore place the matter before the President for constituting a two member bench to decide the matter. Both appeals are directed to be placed the President for constituting two member bench. Registry is directed to send the papers to the President for constituting two member bench.
(Dictated in Court)