M/S Nexus International vs Cc, Ludhiana

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

Customs Appeal No. 55659 of 2014 with

Customs Misc. Application No. 56136 of 2014-SM

(Arising out of order-in-appeal No. ASR-CUSTM-PRV-APP-208-14-15 dated 16.10.2014 passed by the Commissioner (Appeals) Customs & Central Excise Chandigarh).

M/s Nexus International Appellant

Vs.

CC, Ludhiana Respondent

Appearance:

Shri Sudhir Malhotra, Advocate for the appellant-assessee

Sh. M. R. Sharma, DR for the Revenue

Coram:

Honble Mr. Ashok Jindal, Member (Judicial)

Final Order No. 53361 / 2015

Per: Ashok Jindal:

The appellant is in appeal against the impugned order wherein order of confiscation of slag has been confirmed by the ld. Commissioner (Appeals) and directed to be re-exported the same on payment of redemption fine and penalty on the appellant.

2. The facts of the case are that the appellant imported Heavy Melting Scrap (HMS). In the said consignment 51.690 MT was found as slag during the course of examination on first check. Although, the samples were drawn but same has not been tested as the Institute for Auto Parts & Hand Tools Technology, Ludhiana returned back the samples with the remarks that the facility for testing of scull/ slag is not available with them. As the goods were found misdeclared, therefore, assessment take place and the adjudicating authority confiscated 51.690 MT of HMS as slag being hazardous waste and imposed a redemption fine of Rs.10,000/- on the appellant and penalty of Rs. 1 lakh also. The said goods were directed to be re-exported by the appellant on payment of redemption fine and penalty. Aggrieved for the said order of re-export of the said goods, the appellant is before me.

3. Ld. Counsel submits that the appellant imported two consignments, one consignment was sold by him on high sea sale basis and in that consignment also some slag was found but same was held liable for confiscation and allowed to be redeemed on payment of redemption fine and penalty for home consumption. Therefore, there is a discrimination against the appellant and in that circumstances, the order to the extent for re-exportation immediately the hazardous goods after payment of fine and penalty be set-aside. He further submitted that the adjudicating authority or the first appellate authority have not got tested the samples to arrive at a decision that the goods alleged to be misdeclared is slag or not, there is no test report available.

4. On the other hand, ld. AR submits that in the case of similar consignment imported by M/s Oasis Enterprises Pvt. Limited order of the adjudicating authority was challenged before the ld. Commissioner (Appeals) who set-aside the order of home consumption, therefore, there is no discrimination against the appellant. He further submits that as slag was feasibly therefore, no test report is required. In that circumstances, the appeal be dismissed.

5. After considering the submissions by both sides, I find that in this case on first check it was found that the HMS imported by the appellant having slag but after drawing the samples test cannot be done to ascertain the fact that the alleged scrap is actually slag or not and if it is slag whether it is of iron or steel and hazardous. As same is not found by any test report or by any expert opinion. In that case, the allegation of the Revenue that it was slag and hazardous waste is not sustainable as the said finding of the adjudicating authority is only on the basis of assumption and presumption which is not sustainable in the eye of law. In these circumstances, the case of the Revenue stands unproved. Therefore, the benefit of doubt goes in favour of the appellant. In that circumstances, I hold that the goods that is 51.690 MT which is confiscated as hazardous material is not liable for confiscation. Consequently, redemption fine and penalty imposed on the appellant is set-aside and the order for re-export the hazardous goods after payment of fine and penalty is also set aside.

6. With these terms, the appeal is allowed. Misc. application is also stand disposed of.

(Ashok Jindal)

Member (Judicial)

Pant