Union Of India And Others vs Garware Nylons Ltd. Etc on 9 September, 1996
2. At the outset Shri AS Sunderarajan, learned Counsel, accompanied by Miss Sakthi, Counsel submitted that show cause notice had been issued only for two Bills of Entry cited supra. The Commissioner has erred in taking into consideration the past clearances with regard to three Bills of Entry which were not the subject matter of adjudication or show cause notice and confirmed the duty demand and thus the order is required to be set aside. He further pointed out that in the Bills of Entry they had declared the item to be heavy melting scrap rolls for re- rollable mills. He contends that there was no mis declaration and they had declared the description of the material. He pointed out that the burden of classification is on the Revenue and the Commissioner's finding that there was misdeclaration in so far as the tariff item is concerned, is beyond the scope of law. He in this regard relied upon the judgment of the Hon'ble Supreme Court in the case of Union of India vs. Garware Nylons Ltd. Reported in 1996 (87) ELT 112 (SC). He contends that the Commissioner has proceeded to hold that the appellants did not challenge the goods in the form of re-rollers and also the expert opinion. He pointed out that this was challenged and the expert who had given his opinion had been cross-examined. The expert in the course of cross examination gave an opinion that the item is neither a heavy melting scrap nor rejected scrap damages scrap damages scrap nor rolls for rolling. He pointed out that this is the answer given by the expert during cross-examination and the department chose to classify the goods under sub-heading 8455.30 as rolls for re-rolling mills attracting duty of 25% plus 15%. He pointed out that the appellants have not paid the duty voluntarily. They have paid the duty under pressure. He pointed out that the appellants have not disputed the valuation but only the classification of the item. HE pointed out that evidence had been produced by them which has not been looked into by the Commissioner. He also referred to the opinion report of the SGS India Limited dated 20.6.1996 which is filed at page NO. 192 of the paper book which is a report on the findings on the imported consignment. He further pointed out that the expert who was cross-examined was confronted with this text report. The report of findings are as follows: