TaxTMI 
TaxTMI 
2008 (10) TMI 413
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....d scrap declared as - 'Mixed Copper Cable Scrap and 'Mixed Copper Lead Cable Scrap' from the declared value of Rs. 16,91,53,105/- to Rs. 57,99,49,944/-; (b) denied the benefit of Notification No. 53/97-Cus., dated 3-6-97 (in force upto 31-3-03) and 52/03-Cus., dated 31-3-03 (in force w.e.f. 1-4-03) available in respect of duty free inputs - 'Mixed Copper Cable Scrap', 'Mixed Copper Lead Cable Scrap' and 'Mixed Aluminium Cable Scrap' and confirmed customs duty demand of Rs. 27,10,90,863/- against NI under Section 28(1) of the Customs Act, 1982, along with interest on this duty at the applicable rate under Section 28AB of the Customs Act; (c) held 8458.462 MT of 'Mixed Copper Cable Scrap (Druid)' and 4256.29 MT of 'mixed copper lead cable scrap' (Relays) imported by NI as liable for confiscation under Section 111(d), (m) & (o) of the Customs Act but since these goods are not available for confiscation, has imposed a fine of Rs. 30 crores under Section 125 of the Customs Act; (d) imposed penalty of Rs. 27,10,90,863/- on NI under Section 114A of the Customs Act; (e) confirmed Central Excise Du....
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....03-Cus. cannot be denied as the export obligations have been met and positive NFE has been achieved. (2) As per the EXIM policy [ITC (HS)], import of copper cable scrap of ISRI code 'Druid' and Jelly filled Copper cables scrap is allowed without license subject to registration with Ministry of Environment & Forests (MOEF), Government of India. Para 6.2(b) of the 2002-2007 of EXIM Policy permits import of all the items except prohibited items, by a 100% EOU and as per para 6.6(a) & 6.6(b) of the policy, LOP issued to an EOU by the Development Commissioner would be construed as a license for all purposes including procurement of raw materials, and consumables. Copper cable scrap of Druid code is not a prohibited item. Therefore the Appellant company - NI, as a 100% EOU, could import this scrap without registration with MOEF. It is only w.e.f. September, 2004 that the policy was amended to make registration with MOEF compulsory for import of Copper Cable scrap - Druid for all the importers, including EOUs. But this amendment cannot be applied retrospectively. All the imports in this case took place during 2001 - August, 2004 period. (3)  ....
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....policy have been contravened and, therefore, the goods imported by NI would not be eligible for duty exemption under Notification No. 53/97-Cus. and No. 52/03-Cus. (2) As held by this Tribunal in case of Noida Medicare Centre Limited v. CC, New Delhi reported in 2007 (220) E.L.T. 230 (Tri.-Del.), even if a single condition of an exemption notification is violated the exemption has to be denied. (3) As discussed in para 9 of the adjudication order, there is concrete evidence on record showing that NI have grossly misdeclared the description and value of the goods. Therefore the goods are liable for confiscation under Section 111(d) and (m) of the Customs Act and M/s. NI, their partners and other noticees would be liable for penalty under Section 112 or 114A of the Customs Act. (4) The EOU was importing high copper content scrap covered by ISRI code Berry by misdeclaring the same as 'mixed metal scrap' and the copper recovery was being declared as 20% while actual copper recovery was more than 60% and the balance quantity of copper recovered was being clandestinely cleared to DTA without payment of duty. Shri ....
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....uccessors Notification No. 52/03-Cus. and on this basis Customs duty amounting to Rs. 27,10,90,863/- is recoverable from them along with interest. 3.1 The evidence relied upon by the Revenue in support of the above allegation is, in brief, as under - (1) Printout of E-mails and account of import of scrap from various suppliers, retrieved from the computers tendered by Shri Satish Bhalla - the account contains the details of copper scrap imported by NI from M/s. Al Badawai General Trading, Dubai; M/s. Jacob Metals Ltd., London ; M/s. Stena Metal Int., Sweden; M/s. Kawamin Pacific Pvt. Ltd., Singapore and M/s. Hawali Metal Trading Co., Sarjah, mentioning the declared price and the price paid through illegal channels to the suppliers and also the copper content which ranged from 75 to 82% in case of cable scrap imported from M/s. Al Badawai General Trading, Dubai; Jacob Metals Ltd., London and M/s. Hawali Metal Trading Co. and 35% in respect of cable scrap imported from M/s Stena Metal Inc., Sweden. (2) Reports of overseas inquiries conducted by the DRI in respect of scrap imports by NI - reports in respect of imports from M/s. S....
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....re, from where it was being sold to various customers, and that major buyers of scrap are Shri Jai Kumar Garg, proprietor of M/s. S.R. Metals, Shahdara, Delhi; M/s. Master India, Gali No. 2, Shahdara, Delhi; Shri Hetram Sharma alias Sonu of M/s. S.K. Enterprises, Faridabad; Shri Mahesh Kumar, proprietor M/s. Vidya Metal, Sobali Industrial Area and Shri Sudhir Kumar of Saboli Industrial Area. (b) Statement dated 9-11-04 of Shri Jai Kumar Garg of M/s. S.R. Metals and Statement dated 10-11-04 of Shri Hetram Sharma corroborating the statement of Shri Rajinder. Shri Jai Kumar Garg confirmed purchase of about 100 MT of copper scrap worth about Rs. 1.52 crores in cash during period from January, 2004 to June, 2004 from Shri Vinay Jain and Shri Hetram Sharma confirmed buying copper scrap worth Rs. 15,81,170/- from Shri Vinay Jain. (7) (a) Names and addresses of the persons claimed by NI to be the buyers of low value scrap like paper scrap, rubber scrap, PVC scrap and other low value scrap (which is claimed to be about 80%) being fictitious. (b)&....
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..... National Knitting Wire, Delhi, read with Statement dated 9-11-04 of Shri Jai Kumar Garg, of M/s. S.R. Metals, Shahdara, Delhi and statement dated 10-11-04 of Shri Hetram Sharma of M/s. S.K. Enterprises, Faridabad indicate that huge quantity of Copper Scrap had been purchased by Shri Jai Kumar Garg and Shri Hetram Sharma in cash from Shri Vinay Jain during January, 2004 to June, 2004 period. While the Revenue's claim regarding quantum of clandestine clearances of copper scrap without payment of duty and without permission of the Development Commissioner can be examined only at the time of regular hearing, from the evidence discussed above, it prima facie appears that there are substantial clandestine clearance of copper scrap to DTA. 4.1 The Appellant company, except for the rejects and DTA sale entitlement, as determined by the Development Commissioner, should have exported the entire production of copper scrap. However, as discussed above, from the evidence on record, it prima facie appears that substantial quantity of copper scrap recovered from imported copper cable scrap and copper lead cable scrap has been cleared clandestinely to DTA without payment of duty and withou....