Document Fragment View

Matching Fragments

3. Countering the arguments Shri M.P. Singh, learned DR, submitted that in Alex Cables case the Tribunal had reached the conclusion that the goods did not satisfy the grades as mentioned in ISRI; that according to the Import Policy import is allowed only densified/briquetted aluminium used beverage can scrap covered by ISRI code word TALDON/TALDORK; that as admittedly the density in the impugned consignment was more than density prescribed in ISRI code the goods do not satisfy the condition specified in the Import Policy; that .accordingly import licence will be required; that if the density could be varied by mutual agreement there was no necessity to prescribe the minimum and maximum density in ISRI code; that the Adjudicating Authority has given his specific finding that the items not covered in the specifications are subject to special arrangement between buyer and seller does not appear to hold water because this applies only to those items which are not covered in specification provided in the write-up against code TALDON itself. He further submitted that if any variation in the specification are mutually agreed between the buyer and seller this should be ratified only then these could be acceptable. In reply the learned M.D. submitted that the ratification by ISRI will be called when there is a new product and not in the case of variations in specifications.

4. We have considered the submissions of both the sides. The facts which are not in dispute are that what was imported by the appellants was Used Beverage Can Aluminium Scrap which was to be used by the appellants in further manufacture of their product. The Revenue has confiscated the goods and imposed penalty on the ground that the density of the used beverage can was more than the density mentioned in ISRI code. On a perusal of the scrap specification Circular 2001 issued by the Institute of Scrap Recycling Industries (ISRI) we find force in the submissions of the Appellants that ISRI Code are meant to be guidelines and are intended to assist person in buying and selling their materials and products. The Preface to the Code clearly provides for variation or addition to the specifications subject to mutual agreement to suit the specific transaction and individual convenience. The appellants have shown that the density of the impugned goods was more not on account of change in the products imported but on account of inability of the machine employed by foreign supplier to produce so low density materials. As provided in the specification itself both, appellants and foreign supplier, mutually agreed to accept the used beverage can aluminium scrap with more density. Bureau of International Recycling has also clarified in their letter dated 2-5-2001 that scrap density do not change the composition of the metal scrap and the aluminium UBC remain the same material whether compressed to 12 lbs per cubic foot or 15 lbs per cubic foot nor does the density affect the environmental performance of the material as such, it retains the same composition. We also find substance in the submissions of the Appellants that the decision in the case of Alex Cables is not applicable to the facts of the present matter as therein the learned Advocate appearing for the Appellants had consented to the variation and the submissions made in the present matter were not raised before the said Bench. Further, we find that in the said matter there was no mutual agreement between the buyer and the seller as in spite of specific order placed by the appellants therein and the description being reported in the documents, the suppliers had sent the wrong goods. It has been held by the Tribunal in the case of Commissioner of Customs, Bombay v. Hindustan Petroleum Corporation Ltd., 2000 (121) E.L.T. 109 that "the decision which is the result of consent between parties does not settle a question of law, and therefore, is binding on no one other than the parties to the same". We also observe that the Adjudicating Authority himself, as also pointed out by the Appellants, as observed that flattened aluminium scrap is in any case flattened aluminium scrap and nature of the goods does not change with the change in the density, the goods remaining Used Can Alumininum Scrap. In view of these facts and circumstances we set aside both the impugned orders and allow both the appeals.