2015 (8) TMI 190 - AT - Customs

Tribunal allows redemption of goods despite mis-declaration, emphasizing distinction between restricted and prohibited items.

The Tribunal overturned the order for re-export of goods due to mis-declaration and hazardous nature, allowing redemption on payment of fines. It ... Restricted goods - prohibited goods - redeemable on payment of redemption fine and penalty - chartered engineer report - visual examination versus chemical analysis - acceptance of expert report in totoChartered engineer report - visual examination versus chemical analysis - acceptance of expert report in toto - restricted goods - redeemable on payment of redemption fine and penalty - Whether the impugned consignment of sculls and slags could be redeemed on payment of redemption fine and penalty on the basis of the Chartered Engineer's report stating the materials 'appear to be non hazardous' without chemical testing. - HELD THAT: - The Chartered Engineer's report, prepared on visual examination, recorded that the waste contains irregular-shaped material appearing as scull and lumps of slag with ferrous material mixed with impurities and that these slags 'appear to be non hazardous in nature.' The Tribunal noted that Revenue accepted portions of the report (that the consignment contained sculls and slags) but rejected the expert's opinion that they appear non-hazardous; the Tribunal held that the report must be accepted in toto rather than in parts. The Tribunal further held that sculls and slags are not statutory prohibitions but are restricted items; following precedent that restricted items may be allowed to be imported subject to redemption on payment of redemption fine and penalty, the Chartered Engineer's opinion that the materials appear non-hazardous led to the conclusion that the goods could be redeemed. The absence of chemical testing in the report was noted but did not preclude acceptance of the expert visual opinion where Revenue did not displace that conclusion by contrary evidence or admissible expert opinion. [Paras 6, 7]Impugned order directing re-export set aside; order of adjudicating authority allowing redemption on payment of redemption fine and penalty restored.Final Conclusion: Appeal allowed; the Tribunal restored the adjudicating authority's order permitting redemption of the imported sculls and slags on payment of redemption fine and penalty, holding the goods to be restricted (not prohibited) and accepting the Chartered Engineer's visual opinion that they appear non-hazardous. Issues:Appeal against modification of order for re-export of goods due to mis-declaration and hazardous nature of items.Analysis:The appellant imported Heavy melting scrap in August 2013, which was found to have slags and sculls. A Chartered Engineer report confirmed the irregular shape material with ferrous material mixed with impurities. The Adjudicating Authority held the goods were mis-declared and confiscated them, allowing redemption on payment of a fine and imposing a penalty. The Revenue appealed, arguing the items were hazardous and prohibited goods. The Ld. Commissioner (A) agreed, directing re-export of the goods. The appellant contended that the items were restricted, not prohibited, citing judicial pronouncements supporting redemption on payment of fines.The key issue was whether the goods could be redeemed based on the Chartered Engineer's report stating the items appeared non-hazardous. The Tribunal noted the report's visual examination and expert opinion, emphasizing that the report should be accepted in full. It highlighted that the items were restricted, not prohibited, citing judicial precedents allowing redemption on payment of fines for restricted items. Therefore, the Tribunal set aside the order for re-export and reinstated the Adjudicating Authority's decision, allowing redemption on payment of fines.The Tribunal's decision was based on the distinction between restricted and prohibited goods, emphasizing that the items in question were restricted and could be redeemed on payment of fines. By following judicial pronouncements and accepting the Chartered Engineer's report, the Tribunal concluded that the goods could be imported on payment of redemption fine and penalty. The decision clarified the nature of the goods and upheld the appellant's right to redeem them, overturning the order for re-export.