TaxTMI 
TaxTMI 
2024 (8) TMI 1351
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....stoms Tariff Item (CTH) 3901 2000 vide three Bills of Entry (B/Es) No.2277341 dated 08.01.2021, 2302559 dated 11.01.2021 and 2320232 dated 12.01.2021, on First Check basis, requesting for prior examination of the goods. Accordingly, the imported goods covered under the said B/Es were examined by respective JNCH Customs Docks officers and representative samples were drawn for testing the same by M/s Envirocare Labs Pvt. Ltd., which is a NABL accredited laboratory. The test reports given by M/s Envirocare Labs on the representatives samples of imported goods drawn by JNCH Customs officers are given below in TABLEI: TABLE-I Parameters B/E No. 2277341 dated 08.01.2021 B/E No. 2302559 dated 11.01.2021 B/E No. 2320232 dated 12.01.2021 Nature Primary form of brownish coloured plastic material in irregular shapes and sizes Primary form of mixed coloured plastic material in irregular shapes and sizes and found soaked with oil Primary form of blue and natural coloured plastic material in irregular shapes and sizes and found soaked with oil Composition FTIR spectra indicates the material is HDPE FTIR spectra indicates the material is HDPE FTIR spectra in....
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....sample In the form of heterogeneous mixture consisting of dirty cut pieces of different coloured shapes and sizes together with small cut pieces of plastic film. In the form of heterogeneous mixture consisting of dirty and oily whitish translucent cut pieces of different coloured shapes and sizes together with small cut pieces of plastic film. In the form of brown coloured cut pieces of different shapes and sizes. In the form of heterogeneous mixture consisting of dirty and oily cut pieces of different coloured shapes and sizes together with small cut pieces of plastic film. Composition of the sample Pigmented Polyethylene Polyethylene Pigmented Polyethylene Pigmented Polyethylene Whether the sample can be called as waste ? On visual examination, appears to be waste. On visual examination, appears to be waste. Cannot be ascertained On visual examination, appears to be waste. Whether the sample can be called as regrind ? Cannot be ascertained Cannot be ascertained Cannot be ascertained Cannot be ascertained Whether the sample contain any hazardous substance ? Cannot be ascertained Cannot be ascertained Cannot be as....
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.... the said appeal proceedings, the learned Commissioner (Appeals) vide impugned order dated 07.12.2022 had upheld the order of the original authority and rejected the appeal filed by the appellants. Feeling aggrieved with the impugned Order-in-Appeal dated 07.12.2022, the appellants have preferred this appeal before the Tribunal. 3.1 Learned Advocate for the appellants at the outset has submitted that appellants importer have rightly classified the imported goods under CTI 3901 2000 and the classification adopted by the department under CTI 3915 1000is incorrect, as the Chapter Note 7 to Chapter 39 specifically excludes the waste, parings and scrap of a single thermoplastic material which are transformed into primary form, as in the case of the imported goods which are of HDPE plastic regrind. He further stated that the said fact has also been confirmed in the test reports of the CIPET, Aurangabad, a Government laboratory and Envirocare Labs Pvt. Limited, which is a NABL accredited laboratory, both of which also specifically provide that the specific gravity of the imported goods is more than 0.940. Therefore, learned Advocate stated that the imported goods are not covered by the....
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.... was upheld by appellate authority and thus the impugned order is sustainable. Therefore, Revenue humbly prays that the appeal filed by the appellant may be dismissed. 5. Heard both sides and perused the records of the case. We have also considered the additional written submissions given in the form of paper books by learned Advocate for the appellants as well as Authorised Representative for the Revenue. 6. The short issue for determination before us is regarding correct classification of imported goods and examining whether the impugned order, in upholding the confirmation of confiscation of imported goods, imposition of redemption fine for re-export and imposing of penalty on the appellants by the original authority is legally sustainable or not. 7. From the facts of the case, it is seen that the appellants importer have filed the B/Es by declaring the imported goods as 'HDPE Regrind' and by classifying the same under Customs Tariff Item (CTH) 3901 2000 and sought for its prior examination by the customs authorities on 'First Check basis', as stated in paragraph 2 of the original order dated 17.05.2022. The said request has been permitted by the jurisdictional JNCH cus....
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....by M/s Envirocare Labs Pvt. Limited, being a NABL accredited laboratory,are reliable and the summary of the results as given below: (a) Sample material is found to be HDPE Regrind; (b) Sample is composed of single thermoplastic material; (c) Specific Gravity of the sample material is more than 0.94; (d) Results for tested parameters are within limits as per Hazardous Waste Rules, 2016; and (e) All the samples were found to be in primary form of plastic material in irregular shapes and sizes. Further, samples pertaining to Bills of Entry No. 2302559 dated 11.01.2021 and 2320232 dated 12.01.2021 were found soaked with oil. 8.3 Further, the Government laboratory of CIPET, Aurangabad, is functioning under the Dept. of Chemicals & Petrochemicals, Ministry of Chemicals & Fertilizers, Govt. of India and it is a laboratory accredited by National Accreditation Board for Certification Bodies (NABCB), New Delhi as per ISO/IEC 17020 as Type "A" Inspection Body for Plastics, Rubber & allied products / materials. Thus, the test results of such laboratory as per their report dated 19.04.2021 are also reliable and the summary of test results are as b....
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....pect of the issue on proper classification of the imported goods we find that the contending classification as claimed by the importer is under CTI 3901 2000 whereas the SCN had proposed for classification under CTI 3915 1000 of the First Schedule to the Customs Tariff Act, 1975. The contending entries under the above two CTH are as below: "3901 I. PRIMARY FORMS POLYMERS OF ETHYLENE, IN PRIMARY FORMS 3901 20 00 - Polyethylene having a specific gravity of 0.94 or more & 3915 II. -WASTE, PARINGS AND SCRAP; SEMI-MANUFACTURES; ARTICLES 3915 10 00 - Of polymers of ethylene" In arriving at the proper classification of imported goods under the Customs Tariff, in terms of Section 2 of the Customs Tariff Act, 1975, the General Rules for the interpretation of the Schedule is adopted. Accordingly, for legal purposes, the classification of the goods is determined according to the terms of the headings and any relative Section or Chapter Notes. In this regard, we find that the description provided under 3901 2000 as 'Polyethylene having a specific gravity of 0.94 or more' were tested and certified by both CIPET, Aurangabad laboratory and Envirocar....
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....No. S/26-Misc-5633/2010-11 Gr. IIG and addressed to the Commissioner, Directorate General of Valuation, Mumbai, plastic regrind, if on test is found to be of single thermoplastic, it is required to be classified as primary from under CTH 3901 to 3914 depending upon the composition and such single thermoplastic of primary from cannot be classified as a waste/scrap and thereby is not an item which is restricted for import in terms of Public Notice no. 392 (92-97) RE dated 01.01.1997 issued by DGFT. This shows that the department is of the view that plastic regrind of single thermoplastic material cannot be classified as a waste/scrap and thereby is not an item which is restricted for import in terms of imported vide Bill no. 2277341 dated 08.01.2021 were released subject to payment of duty. However, in case of Bill of Entry no. 2320232 dated 12.01.2021 and 2302559 dated 11.01.2021, issue is a bit different. It is a fact that as per CPET test reports and Test Reports of Envirocare Labs Pvt. Ltd., impugned goods (i.e., goods imported vide Bill of Entry no. 2320232 dated 12.01.2021 and 2302559 dated 11.01.2021) are "HDPE regrind", but it is also a fact that during physical examination o....