CESTAT, Chandigarh Bench
Shri Balaji International Vs. Commissioner of Central Excise, Chandigarh
Ashok Jindal, Judicial Member And Devender Singh, Technical Member
Final Order No. 61854 of 2017
Appeal No. C/51922 of 2015 CU (DB)
August  16, 2017Â
ORDER
Devender Singh, Technical Member – The appellants are in appeal against the Order-in-Appeal No. ASR-CUSTM-PRV-APP-311-14-15 dated 30-01-2015 passed by the Commissioner of Customs and Central Excise (Appeals), Chandigarh.
2. Brief facts of the case are that the appellant M/s Shri Balaji International filed Bill of Entry No. 9328239 dated 15.02.2013 for the import clearance of 98.935 MTS of Re-Rollable Material falling under Chapter Heading No. 72044900 of the Customs Tariff. The goods were imported at the rate $450 per MTS. The goods were examined by the Import Shed Staff and it was reported that the consignment is in the form of defective/rejected Hot Rolled sheets of various size and thickness. Based on the examination report, the Revenue sought to classify the goods under tariff item 72089000 of the Custom Tariff. The importer did not agree with the examination report and requested for services of an expert and market enquiry. A market enquiry was conducted from 2 entities in Mandi Gobindgarh, one of which indicated that the imported goods were Prime Hot Rolled sheets of various size and thickness and accordingly the Revenue felt that the goods were classifiable under Chapter Heading 7208 and that there was mis-declaration of the goods rendering them liable to confiscation. After adjudication, the goods were classifiable under 72089000 instead of 72044900 and the value was enhanced on the basis of the value of Hot Rolled Non Alloys Steel Sheets and the same were cleared vide Bill of Entry No. 9313526 dated 14.02.2013 after loading of value to $536 per MTS. The goods were confiscated and allowed to redemption fine of Rs. 2,00,000 and personal penalty of Rs. 85,000/- was also imposed on the importer. In the appeal filed by the appellant, the Commissioner (Appeals) upheld the order of Adjudicating Authority. Aggrieved from the same, the appellants are before this Tribunal.
3. Ld. Advocate for the appellants submits that the goods have been classified under Tariff Heading 72089000 in which the flat rolled products with width of 600 mm or more can only be classified. In their case, the goods are only cuttings, whose width is nowhere mentioned in the examination report or in the findings of both the lower authorities. Hence the basis of re-classification and charge of mis-declaration is not justified. He also contended that the valuation has been done on the basis of goods whose specific dimension was given in para 6 of the Order-in-Original as ‘Hot Rolled Sheets (Non Alloys) 1.5-4mm x 900-1550 mm x 1550-2550mm’. However, in the absence of specific dimension of their cuttings, the goods were neither comparable in description nor in dimension. He also relied upon the judgment of Anand International v. Commissioner of Customs (Preventive) 2014 (02) LCX 0270 and argued that the said judgment has considered the case of Vikas Spinners v. Commissioner of Customs 2001 (128) ELT 143 (Tri. – Delhi) relied upon by first appellate authority.
4. Ld. AR appearing for the Revenue reiterated the findings in the order of Commissioner (Appeals).
5. Heard both the sides and perused the records.
6. We find that the goods were declared as re-rolled material falling under Chapter 72044900 at a price of $450 per MTS. The Revenue has sought to classify them under Chapter 72089000 of Custom Tariff and thereby has fastened the charge of mis-declaration on the importer. The Revenue has taken two market opinions. As per first report, it was found that they were the cuttings of big sheets/plates of different sizes and basically waste arising out of fabricating industry and can be used for re-rolling. The second report indicated that goods were prime MS Plates of various lengths and cuttings of big sheets and these can be re-rolled. On that basis, the Revenue classified the goods under 72089000 as Prime Hot Rolled sheets. We find force in the contention of Ld. Advocate that heading 7208 requires that the width of product should be 600 mm or more to be classified under the said heading. In the instant case, it is nowhere coming out in either the examination report or the market opinions as to what is width of these cuttings. Hence, classification under this heading as has been held in the adjudication order and in the order of Commissioner (Appeals) is without any basis and hence incorrect. We also find that the value has been enhanced on the basis of Hot Rolled sheets whose specifications were known. In this case, the report only says the cuttings of different size and length without specifying the dimension while other report says that these are basically waste of the fabricating industries. The other report also concludes that these are Prime M.S. Plates of various lengths. Hence the reports are also conflicting to that extent. In view of these facts, we find that the basis of classification as well as loading the value is fallacious.
7. In view of the foregoing, classification of Chapter Heading 7208, the charge of mis-declaration and under valuation are not justified and the enhancement of value is equally unjustified.
8. In view of the above, the order of Commissioner (Appeals) cannot be sustained and is accordingly set aside.
9. In the result, the appeal is allowed.
[Citation : 2017-Taxcaselaw-81-CESTAT-Chandigarh-GST]
