TaxTMI 
TaxTMI 
2016 (3) TMI 220
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....l, the Commissioner (Appeals) in his impugned order set aside the order and directed the adjudicating authority to release the goods after ensuring mutilation of the entire goods at the cost of the appellant in the presence of customs authorities. Hence the present appeal filed by Revenue. 2. Ld. A.R appearing for Revenue reiterated the grounds of appeal filed by Revenue and the OIO dt. 17.9.2012. She drew our attention to para-4 of the adjudication order and submits that the importer has waived the show cause notice and personal hearing and indirectly admitted the misdeclaration and submits that they cannot raise a new plea on this issue. She submits that as per the test report, the goods are 90% secondary welded pipes and it cannot be considered as HMSS. She further submits that Commissioner (Appeals) should not have allowed for mutilation of the goods. She relied the following citations :- (1) ACC Ludhiana Vs Aman Alloys Ltd. -2011 (271) ELT 200 (P&H) (2) BSNL Vs CCE - 2015 (320) ELT 544 (All.) 3. On the other hand, Ld. Advocate representing for respondent, reiterated the findings of the OIA. Regarding waiver of SCN, the submits that bill of e....
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..... He therefore submits that Revenue relying on Punjab and Haryana High Court decision in the case of Amman Alloys Ltd. (supra) is prevailed over by jurisdictional Madras High Court's ruling in the case of Sri Renga Steel Corporation (supra) which is binding on the authorities and the Tribunal. He also relied on CC Chennai VsGarg Steel - 2007 (219) ELT 195, Dewan Steel Industries VS CC Amritsar - 2008 (226) ELT 616 (Tri.-Del.). 4. In rejoinder, Ld. A.R rebutted the arguments of advocate and submits that case law relied by respondent is not applicable as the High Court has rejected mutilation. She also relied CC Bombay VsHardik Industrial Corporation - 1998 (97) ELT 25 (SC). 5. After hearing both sides, we find that the short issue is whether the goods imported are "Heavy Melting Steel Scrap" or "Secondary Welded Pipes". On perusal of the purchase order/sales contract No.495/2012 dt. 08/06/2012, the details of goods supplied by overseas supplier to appellant is furnished. The relevant part is reproduced as under :- As per the above contract, the appellants have placed orders for supply of 1000 MTs of HMSS with the overseas supplier, Singapore which is confirmed by ....
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....hat had been observed by his predecessor-in-office who conducted physical examination of the consignments as also on the basis of the importer's statement dated 2-3-2001. It is true that the importers had stated that the goods imported by them were usable/serviceable materials and that the Commissioner had, in the course of the first round of adjudication of the case, found, on physical examination, that the goods were usable/serviceable and hence not scrap. Obviously, the adjudicating authority did not want to record a finding of misdeclaration by the importer only on the basis of their statement. Otherwise, the authority would not have sent samples of the goods for chemical examination and inspected the goods himself. Ld. Commissioner chose to take the importer's statement as a corroborative evidence only. The main peace of evidence, found by the Commissioner in support of his finding of misdeclaration, is the physical examination report of his predecessor-in-office. But, in our view, this physical examination report would not necessarily call for a finding that the entire consignment contained usable/serviceable materials only. The physical examination done by the Commissioner, ....
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....e goods by the importer, there is no reason for confiscation of the goods or for penalty on the importer. 7. In the result, we set aside the impugned order to the extent of setting aside confiscation (with redemption fine) and penalty and permitting the appellants to clear the goods in multilated condition, on payment of duty as applicable to scrap. We also find that the Revenue preferred CMA against the Tribunal's order before the Hon'ble High Court of Madras and the High Court of Madras in their order reported in 2014 (305) ELT 377 (Mad.) upheld the above Tribunal order and dismissed the CMA filed by Revenue. The relevant paragraphs of the Hon'ble High Court of Madras order are reproduced as under :- 7. As pointed out earlier, the only point that has to be decided in the present Civil Miscellaneous Appeal is as to whether the respondent is liable to pay duty on the basis of scrap materials or on the basis of usable things. 8. The entire argument putforth on the side of the appellant hinges upon the report filed by the Commissioner as well as the statement alleged to have been given by one of the partners of the respondent. 9. It ....
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.... Revenue in a private laboratory is not the competent authority approved by CRCL or Customs. Further, even as per the test report, the goods were found to be 'secondary pipes' which clearly confirms that they are 'scrap'. We find that Commissioner (Appeals) taking into consideration of the goods clearly directed the department to mutilate and allow clearance as scrap. Therefore, Revenue's relying on Punjab and Haryana High Court decision in Aman Alloys Ltd. (supra) is distinguishable and not applicable for the reason that this jurisdictional High Court of Madras order which upheld the decision of this Bench of the Tribunal is binding on the Tribunal and prevails over. We also find that the appellants are registered Central Excise assessee having foundry for manufacture of billets, TMT bars as evident from the Central Excise registration and paying central excise duties on the final products. It is confirmed that appellant is not a trader of imported goods in the guise of scrap for trading purpose. Therefore, bonafide of the appellant is justified being actual user. We also find that pre-shipment inspection certificate clearly indicates that HMSS supplied was ....