2017 (8) TMI 303

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....under Customs Notification No. 21/2002 (Sl.No. 207) dated 1.3.2002. On examination of the goods by National Metallurgical Laboratory (NML) to ascertain whether the goods are prime or secondary, NML issued a certificate dated 16.12.2002 certifying that the goods are secondary. Thus, the department proposed to deny the concessional rate of duty and issued show cause notice for recovery of duty, interest and also for imposing penalty. After adjudication, the adjudicating authority held that the goods are seconds and denied the benefit of concessional rate of duty. It was also held that the goods are liable for confiscation and since the goods were provisionally released, redemption fine of Rs. 5,00,000/- was imposed besides penalty of Rs. 2,00....

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.... three different agencies namely M/s. SGS India Pvt. Ltd, M/s. Intertek Testing Services and also by a professor and Head of the Department of Metallurgical Engineering, IIT, Chennai. The survey report dated 13.12.2002 submitted by M/s. SGS India Pvt. Ltd. stated that the reason for the goods / coils / rods to be rusty may be due to storage in open area. The professor of Metallurgical Engineering had also inspected the goods and certified that they are of prime quality. That the department has not furnished any evidence to prove that the goods are not of prime quality. The learned counsel relied upon the decision in the appellant's own case rendered by the Tribunal reported in 2005 (180) ELT 36 (Tri. - Chennai) in which non-alloy steel ....

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....at the goods are seconds and therefore the adjudicating authority has rightly denied the benefit of Notification. 5. We have heard the submissions made by both sides. 6. Apart from the report of NML stating that the goods are seconds, there is no evidence to establish that the goods are not prime. The benefit of Notification is eligible if the goods are of 'prime' quality. The expert of IIT, Chennai has certified that the goods belong to prime category and the same has also been noted in the Bill of Entry. The fact that rust was present on the goods cannot be a reason to hold that the goods are of second quality for the reason that such rust can occur if the goods are exposed to moisture. The other ground raised by the departm....