Custom, Excise & Service Tax Tribunal
M/S Facor Steels Ltd vs Commissioner Of Customs & Central ... on 1 March, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT No. I Appeal No. C/319/05 (Arising out of Order-in-Appeal No. SVS/61/NGP-1/2004 dated 27.12.2004 passed by Commissioner of Customs & Central Excise (Appeals) Nagpur) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) ================================================
1. Whether Press Reporters may be allowed to see : No 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 : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
M/s FACOR Steels Ltd.
Appellant Vs. Commissioner of Customs & Central Excise Nagpur Respondent Appearance:
None for appellant Shri M.K. Mall, Asst. Commr (AR) for respondent CORAM:
Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) Date of Hearing: 01.03.2016 Date of Decision: 01.03.2016 ORDER NO Per: M.V. Ravindran This appeal is directed against order-in-appeal No. SVS/61/NGP-1/2004 dated 27.12.2004.
2. None appeared on behalf of the appellant nor there is any request for adjournment. Since the matter is of 2005 we take up the appeal for disposal.
3. Heard learned D.R. and perused the records.
4. On perusal of the records, it transpires that both the lower authorities have held that the appellant is liable to be penalized as the imports they have made during the period October 2004, there was mis-declaration. It transpires that the appellant had imported stainless steel scrap and filed bills of entry for clearance of the said consignment and after assessment 2nd check was conducted. During which, on examination it was noticed that the cargo of stainless steel scrap also contained stainless steel scrap flanges and this flanges appeared serviceable and were not in the nature of scrap. The entire consignment was de-stuffed and flanges were separated from the rest of the cargo. The adjudicating authority after following principles of natural justice ordered assessment of bill of entry holding that the flanges as mis-declared goods and classifying the same under CTH 730721.00 and not considering them as scrap. The adjudicating authority has also ordered for recovery of customs duty and imposed redemption fine in lieu of confiscation of stainless steel flanges and also imposed penalties. On an appeal, the first appellate authority also concurred with the views of the lower authority and upheld the demands.
5. In the grounds of appeal, the appellant hass submitted that the appellant was manufacturer of primary firms of iron and steel products and has imported the scrap from their overseas suppliers. He also submits that the supplier had categorized the consignment as scrap and the flanges in question which were found in the consignment was non-serviceable and could not have been used in any other machine/machinery. It is also stated that the serviceability of the stainless steel flanges is in doubt as the appellant had produced the photographs of the flanges in question that have threaded holes at different places which would mean that flanges could be used only for a specific purpose and for specific machineries and cannot be used for general purpose. It is also submitted that a Chartered Engineer has inspected the consignment and stated that the goods in question i.e. stainless steel flanges were unserviceable.
6. Learned D.R. would reiterate the findings of the lower authorities.
7. We find that the first appellate authority has come to a conclusion that the flanges which were found in the stainless steel scrap consignment are serviceable without any evidence or any certificate from the experts. It is noted from the records that the appellant had produced certificate of Chartered Engineer before the adjudicating authority as well as the first appellate authority. The claim of the appellant as to these flanges in question were unserviceable and were scrap has not been considered in correct perspective by the lower authorities inasmuch as that the lower authorities have not recorded any findings. It is also noted that the appellant had placed an order for stainless steel scrap which was to be melted and used for manufacturing of bars and billets and not for trading purpose. In our considered view, the claim of the appellant seems to be genuine and the flanges in question which were found in the stainless steel scrap seems to be scrap only and unserviceable. The certificate issued by a Chartered Engineer which was done so at the behest of lower authorities, the fact is not disputed by the first appellate authority.
7.1 In view of the foregoing, we hold that the impugned order is unsustainable and liable to be set aside and we do so.
8. The impugned order is set aside and the appeal is allowed with consequential relief, if any.
(Operative Part of the order pronounced in Court on 01.03.2016) (C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial) nsk ??
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1 5Appeal No. C/319/05