2007 (9) TMI 491

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....hallenged the enhanced transaction value and the confiscation of the goods as well as imposition of penalty. 2. The appellant filed two bills of entry dated 19-10-2005 and 20-10-2005, for clearance of 176.015 MTs and 321.320 MTs, respectively, of the goods declared as heavy melting scrap, classifiable under Heading 7204 for which the importer claimed the benefit of the Notification No. 21/2002 S.No. No. 200 applicable for melting scrap, on execution of end-use undertaking and production of end-use certificate. The declared value related to the goods having been declared as heavy melting scrap. When the goods were assessed on "second check" basis on "open" order being given and examined, it appeared that, in one of the containers 70%....

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....d that the imported goods were, in fact, used for melting. It was argued that, there was no reason to attribute mala fide intention to the appellant. It was also argued that, as per the international standards, the goods were all scrap and could not have been considered to be of prime quality. It was, therefore, submitted that, there was no justification for classifying the goods as M.S. Rods of prime quality under Chapter Heading 7214 and the enhancement of value and order of confiscation of the goods, and imposition of penalty were not justified. 6. The learned authorized representative for the Department supported the reasoning and findings of the impugned order and submitted that, on the examination of the goods, they were found....

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....; Shyam Antenna Electronic (P) Ltd. v. CC, Delhi, 2003 (162) E.L.T. 898 (T-Del.). 7. From the material on record, it is established, without any shadow of doubt, that the goods which were declared as heavy melting scrap on behalf the appellant in the two bills of entry were on physical checking found to be of prime quality having uniform length and diameter to the extent of 70% and 60% in respect of the two bills of entry. If the appellant had imported only scrap, there was no reason for the supplier to reward them with goods of prime quality, the value of which would obviously be much higher than the value of scrap. The contention that, the goods which were found to be of prime quality were, in fact, scrap by international standard....

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....there was 100% examination of goods in which 70% of the goods covered under one bill of entry and 60% covered in the other, were found to be goods of prime quality, appears to have overlooked the provisions of Section 120(2) of the Customs Act, 1962, the proviso of which lays down that, when the owner of such goods proves that, he has no knowledge or reason to believe that they included any smuggled goods, only such part of the goods, the value of which is equal to the values of the smuggled goods, shall be liable to confiscation. It would, therefore, be appropriate for the Commissioner to consider the matter in the context of the provisions of Section 120(2) for deciding, whether only the part of the goods which were found to be of prime q....