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1. In these 2 appeals, filed by M/s. Hiren Aluminium Ltd. and M/s. Pankaj Extrusions Ltd., the common issue involved is whether aluminium scrap imported by them is liable for confiscation under the provisions of Customs Act.

2. Shri C. Hari Shanker, learned Advocate, submitted that both the appellants imported aluminium scrap of used Beverage cans (UBC) Taldork as per ISRI specifications; that the Commissioner, under the impugned Orders, have confiscated the goods with an option to redeem the same on payment of redemption fine and imposed penalty holding that the goods do not conform to the specifications for Taldork grade. The learned Advocate, further, submitted that ISRI specifications are framed basically for avoiding the dispute between the buyers and sellers and are merely the guidelines; that this has been clarified in preface to the ISRI specification which states that "specification of scrap materials are subject to negotiation between buyer and seller. Specifications vary according to the requirements of individual consumers"; that ISRI specifications are not on the same footing as ISI, BS, and DIN wherein specifications are self-defined and are not variable depending upon the requirement of buyer and seller; that Mr. Ross Bartley, Environmental and Technical Director, Bureau of International Recycling, in his letter, dated 27-2-2001 has mentioned that "these scrap densities are respectively achieved by shredding or.....briquetting the UBCs; such mechanical processing does not in any way change the composition of the metal scrap or indeed its fitness for recycling as furnace feedstock. The actual density of any such shipment of scrap metal does not preclude the later mechanical processing such as balling, shredding, shearing or briquetting to increase or decrease the density to suit further handling of the scrap metal". He finally submitted that the Appellate Tribunal in the case of Varun Aluminium Industries Ltd. v. C.C., Nava Sheva - Final Order Nos. 18-19/2002-B, dated 15-1-2002 [2002 (141) E.L.T. 238 (Tri-Del.)] has held that ISRI code is basically for the guidance of the traders and different type of scraps are mentioned only for the purpose of trade and variation at the option of the buyer and seller is permitted; that the decision in Varun Aluminium case squarely covers both the present matters.

3. Countering the arguments Shri D.N. Chaudhary, learned SDR, submitted that according to the Import Policy, import is allowed only of densified/briquetted aluminium used Beverage cans scrap covered by ISRI code Taldon/Taldork; that once the specifications have been provided in ISRI code they have to be followed otherwise the very purpose of giving the specifications will be lost. He also mentioned that in Varun Aluminium the consignment was having more density than the prescribed in ISRI code and there was mutual agreement between the buyer and the seller; that in the case of Hiren Aluminium Ltd. the briquette density was less than the minimum specification of 50 Pounds per cubic fit; that in the case of Pankaj Extrusion Ltd. briquette are in the form of small cylinders and length 3.5 inches and diameter of 4.5 inches which is much below the variable minimum length of 8 inches; that accordingly the decision in the case of Varun Aluminium is not applicable. In reply the learned Advocate submitted that in the case of Pankaj Extrusion the export contract between foreign supplier and Pankaj Extrusion was in respect of Briquetted Aluminium UBC scrap. Taldork and the specification given under the clause 'Tacking' specifically refers to the variation/addition from the standard ISRI specification. It is also mentioned that the supplier confirms that these deviations/additions from the standard specification covered by ISRI word "Taldork" shall govern this contract. He, therefore, submitted that in view of the preface to ISRI code and also the fact that it is mentioned in the specification for Taldork grade that "items not covered in the specification, including moisture, and any variations in the specification are subject to special arrangement between buyer and seller", the impugned goods are not liable for confiscation.

4. We have considered the submissions of both the sides. It is not in dispute in both these appeals that what has been imported by both the appellants are UBC aluminium scrap. The impugned goods have been confiscated by the Revenue on the ground that in one case the density of the UBC was less than the density mentioned in ISRI code and in another matter, Briquette size and the manner of bundling was different from the specification given for Taldork in ISRI code. The learned Advocate for the appellants has correctly submitted that the issue involved in both these appeals is covered by the decision of the Tribunal in the case of Varun Aluminium Industries Ltd. where the Tribunal has held as under :-

"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 suite 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."