Custom, Excise & Service Tax Tribunal
Sanjivani Non Ferrous Trading Pvt Ltd vs Ghaziabad on 25 June, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL
REGIONAL BENCH : ALLAHABAD
COURT No. I
APPEAL No.C/250/2012-CU[DB]
(Arising out of Order-in-Appeal No. 54-Cus/APPL/GZB/2012 dated
30/03/2012 passed by Commissioner of Central Excise & Customs
(Appeals), Ghaziabad)
M/s Sanjivani Non Ferrous Trading Pvt. Ltd. Appellant
Vs.
Commissioner of Customs, Ghaziabad Respondent
Appearance:
Ms Stuti Saggi, Advocate for Appellant
Shri Sandeep Kumar Singh, Deputy Commissioner (AR), for Respondent
CORAM:
Hon'ble Smt. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. Anil G. Shakkarwar, Member (Technical)
Date of Hearing : 25/06/2018
Date of Decision : 25/06/2018
FINAL ORDER NO-71665 / 2018
Per: Anil G. Shakkarwar
The present appeal is directed against Order-in-Appeal
No. 54-Cus/APPL/GZB/2012 dated 30/03/2012 passed by
Commissioner of Central Excise & Customs (Appeals),
Ghaziabad.
2. The brief facts of the case are that the appellants
imported "Alumunium Scrap" and filed Bill of Entry
No.007111 dated 23.09.2011 at ICD, Loni. The Original
2 APPEAL No.C/250/2012-CU[DB]
Authority held that there has been mis-declaration in the
description of the goods and imported goods required specific
import license and therefore, confiscated the goods and also
enhanced value of the goods for the purpose of assessment of
Customs duty. For better appreciation "Discussions &
Findings" and "Order" recorded by the Original Authority are
reproduced below:-
DISCUSSION & FINDINGS
I have carefully considered the facts as recorded
and party‟s letter I find that the party has declared the
imported goods for clearance of 21.898 Mts. as
„Aluminium Scrap Taint Tabor‟ and „Aluminium Scrap
Talk‟ where as on examination the „Aluminium Scrap
Taint Tabor ws found to the extent of 16.070MTs and
Aluminium Radiator Scrap without copper tubing was
found to the extent of 5.830 MTs. Thus, the party has
mis-declared the goods imported by them and hence have
violated the provision of the Customs Act, 1962. Further,
it has been found that the value declared by the importer
is on lower side as compared to NIDB data and the
invoice value is liable to be rejected under Rule 12 of the
Customs Valuation (Determination of value of imported
Goods) Rules, 2007 and the same has been redetermined
under Rule 9 method i.e. Residual method after following
Rule 4 to 8 sequentially by the Appraising officer to USD
1863 PMTs. The value of Aluminium Radiator Scrap is
found fair as per NIDB data by the Appraising officer.
Accordingly, the assessable value collectively for both the
items is enhanced to Rs.19,11,011/- by the Appraising
Officer instead of Rs.18,49,553/- as declared by the
importer.
3 APPEAL No.C/250/2012-CU[DB]
Furthermore, the importer has mis-declared the
classification of goods under CTH 76020010 but the
goods Aluminium Radiator Scrap without cover tubing i.e.
"TALLY" is properly classifiable under CTH 76020090
and require specific import license from DGFT. The
importer failed to produce the required import license.
Moreover, for the remaining goods i.e. Taint Tabor there
has been a misdeclaration of the quantity imported which
was actually found to be 16.07 MT while it was declared
as 10.73MT. I find that the party has waived the
requirement of SCN and they do not want any personal
hearing in the matter. Thus, I find that the importer has
mis-declared the goods and are liable for confiscation
under Section 111 (d), 111 (l) & 111 (m) of the Act and for
doing so, the party is liable for penalty under Section 112
of the Act, ibid. Under the circumstances, I pass the
following order:-
ORDER
(I) I confiscate the goods imported vide Bill of Entry No.007111 dated 23.09.2011 under Section 111
(d), 111 (l) & 111 (m) of the Customs Act, 1962.
However, I give an option to pay fine of Rs.3,00,000/- in lieu of confiscation and redeem the said goods under Section 125 of the Act. (II) I also impose a penalty of Rs.1,00,000/- (Rupees One Lac only) under Section 112 of the Act ibid." Aggrieved by the said order appellant preferred appeal before Commissioner (Appeals) which was decided through impugned Order-in-Appeal wherein the learned Commissioner (Appeals) did not interfere with the above stated findings of 4 APPEAL No.C/250/2012-CU[DB] the Original Authority. Aggrieved by the said order, appellant is before this Tribunal.
3. Heard the learned Counsel for appellant. She has submitted that in Customs Tariff, Heading 7602 deals with "Aluminium Waste and Scrap" and that Sub-heading 76020010 covers "Aluminium Scrap as per ISRI Code"
whereas Sub-heading 76020090 covers "Other Waste and Scrap". She has further submitted that as per 1997 ISRI Specification, "Aluminium Scrap Radiators" was covered by ISRI Code word "Talk" and the same is covered by Sub- heading No.76020010 of the Customs Tariff. ISRI specifications have undergone some changes in 2011. However, The Customs Tariff was not aligned with the reversed ISRI specifications. She has further submitted that all the goods imported by the appellant were classifiable under ISRI specifications of 1997 and the same were falling under Sub-heading 760020010. As a result, there has been no mis-declaration. She has further submitted that the value was enhanced by assessing officer without following the procedure laid down by Customs Act, 1962. She has further submitted that it was held by this Tribunal in assessee's own case decided through Final Order No.70132-70137/2017 dated 17.01.2017 that before enhancing the assessable value, revenue has to first establish that the price is not the sole 5 APPEAL No.C/250/2012-CU[DB] consideration and such exercise was not carried out in the present case. Therefore, impugned order is not sustainable.
4. Heard the learned A.R. for revenue who has submitted that the enhancement in the value was on the basis of NIDB data.
5. Having considered the rival contentions, we find that the submissions by learned Counsel for appellant as recorded hereinabove are tenable in law. We, therefore, accept the same and set aside the impugned order and allow the appeal. Appellant shall be entitled for consequential relief, as per law.
(Pronounced in Court)
(Archana Wadhwa) (Anil G. Shakkarwar)
Member (Judicial) Member (Technical)
akp