TaxTMI 
TaxTMI 
2019 (12) TMI 796
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....2017 for home clearance by claiming exemption under Notification No.s.24/2005-Cus dt. 01/03/2005, 12/2012-CE dt. 17/03/2012 and 21/2012-Cus dt. 17/03/2012. 2.2. On initial examination of the imported cargo by the officers of the Customs, they entertained doubt that the imported goods are scrap and waste. Therefore they handed over the investigation to Special intelligence & Investigation Branch (SIIB) for further investigation with the observation that the imported goods are nothing but scrap of solar cells. The officers of SIIB are re-examined the imported goods on 30/06/2017 and also recorded the statement of Shri Mohammed Asif, the Managing Partner of the appellant and also recorded the statement of Shri D. Narendra, CEO of the Customs Broker's firm M/s. Access Worldwide Cargo on 03/07/2017. In the meantime, the appellant imported another consignment measuring 7214 kgs of solar cells - Uneven cut assorted solar cells valued Rs. 15,85,352.07 from Germany and filed Bill of Entry No.2398537 on 11/07/2017 for home clearance by assessing the goods to customs duty of Rs. 2,85,363/- and claiming exemption from Basic Customs Duty under Notification No.24/2005-Cus. The said import was a....
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....lant to redeem the goods for re-export within 30 days on payment of redemption fine, failing which, he has ordered for disposal of goods in accordance with law. Aggrieved by the order of the Additional Commissioner directing the appellant to redeem the goods for re-export of goods on payment of redemption fine, the appellant filed Writ Petition No.WP24397/2018(T-Cus). before the Hon'ble High Court of Karnataka seeking direction to stay the order of re-export and consequently, for release of the seized goods. Hon'ble High Court vide its order dt. 13/06/2018 granted interim stay for disposal of the goods and subsequently vide order dt. 10/10/2019 disposed of the Writ Petition with a direction to the Tribunal to dispose of the appeal in an expeditious manner. Aggrieved by the order passed by the Additional Commissioner, the appellant has filed the appeal before the Commissioner(Appeals) and the Commissioner(Appeals) vide Order-in-Appeal dt. 13/11/2018 rejected the appeal by upholding the order passed by the Additional Commissioner. Hence the present appeal. 3. Heard both sides and perused the records. 3.1. Learned counsel for the appellant submitted that the impugned order is not su....
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.... condition, that itself cannot be the determinitative factor to decide / change the classification of the impugned goods. He further submitted that the imported solar cells are fragile in nature and the goods have been mishandled during the course of investigation or during the transit and the same resulted in damage to the imported goods, for which appellant cannot be held responsible. He further submitted that out of 13599.5 kgs, only about 70 kgs. of silicon wafer are found to be in broken condition and hence, entire quantity of 13599.5 kgs cannot be held as waste and scrap. He also submitted that the fact of breaking of imported consignment due to mishandling is further corroborated by the report of the IISc dt. 08/08/2017. It is pertinent to note that the samples drawn during the course of investigation were sent in envelope cover which clearly shows the manner of investigation conducted by the investigating authority in the present case. He further argued that Schedule III of the Hazardous and other Wastes (Management & Transboundary Movement) Rules, 2016 covers the Hazardous Waste and Other Waste which can be imported with or without permission. However, in the said Schedule....
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....appellant and cannot be relied upon in the absence of corroborative evidence. He further submitted that the burden is always on the Department in the matter of classification of the goods and in the present case, the Department has not made any effort to prove the same with documentary evidences except proceeding to classify the impugned goods as waste / scrap of solar cells solely considering the breakage of some of the imported goods without considering the nature of usage of the said goods. For this submission, he relied upon the following decisions:- i. Singhla Sales Corporation Pvt. Ltd. Vs. CC, Amritsar [2002 (141) ELT 806 (Tri. Del.)] ii. MP Dyechem Industries Vs. CC, Bhopal [2002(139) ELT 656 (Tri. Del.)] iii. Hindustan Ferodo Ltd. Vs. CCE [1997(89) ELT 16 (SC)] iv. UOI Vs. Garware Nylons Ltd. [1996(87) ELT 12 (SC)] v. Kapadia Enterprises Vs. CCE [2001(131) ELT 494 (Tri.)] 3.2. The learned counsel also made an alternative submission that in any case, if for argument sake that if the import of impugned goods requires prior permission from any of the authorities, then non-obtaining of prior permission is only a procedural lapse which can be rectified any time befor....
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....unal in the case of HBL Power Systems Ltd. Vs. CC, Visakhapatnam [2018(362) ELT 856 (Tri. Hyd.)] wherein the Tribunal in identical circumstances has analysed the scope of Section 125 of the Customs Act. It is relevant to reproduce Section 125, which is herein below:- 125. Option to pay fine in lieu of confiscation. - (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods for, where such owner is not known, the person from whose possession or custody such goods have been seized, an option to pay in lieu of confiscation such fine as the said officer thinks fit : Provided that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. (2) where any fine in lieu of confiscation of goods is imposed under sub-section (1) the owner of such goods or the person referr....
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.... to act contrary to law. In particular, the Customs authorities, who are the creatures of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. May be the High Court or a Civil Court is not bound by the said provisions but the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with its power under Article 226 or the power of a Civil Court. No such delegation or conferment can ever be conceived. We are, therefore, of the opinion that the direction contained in Clause (3) of the impugned order is unsustainable in law." 12. We also find that not only Section 125 but no Section of the Customs Act, 1962 gives any officer the power to compel anyone to import or export or re-export. This Section also does not give the Adjudicating Authority the right to give a conditional redemption saying "you can redeem only if you agree to re-export". In case of prohibited goods the adjudicating authority has only two options : (a) to allow redemption on payment of fine; or (b) to not allow redemption. 13. In view of the above, we find that the condition in the Order-in-Original that ....
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....SPCB. In fact out of the 3 reports, the crucial and relevant is the report submitted by the KSPCB because their officers visited the spot and after physical verification, they have observed in their report dt. 31/10/2017 that the cut pieces of solar cells of silicon wafers may be used for various solar applications like assembling of solar lantern, solar light etc. Further we find that both the authorities have wrongly relied upon the statement recorded during the investigation. The copies of which have not been supplied to the appellant and has come to the conclusion that the appellants have admitted the misdeclaration. As per the settled law, the burden of classification is on the Department and in the present case, the Department has not made any effort to prove the same by any documents except the proceeding to classify the impugned goods as waste and scrap solely considering breakage of some of the imported goods and without considering the nature of usage of the said goods. Here it is pertinent to reproduce the report of KSPCB which is the most authentic report, which is as under:- 5.3. Further we find that even in the report of CPCB, the Board has clarified that the scrap o....