M/S. Oasis Enterprises (P) Ltd vs C.C.E. Ludhiana

[Arising out of Order-in-Appeal No. ASR-CUSTM-PVR-APP-194-14-15 dated 18.09.2014 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Chandigarh].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the 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?

M/s. Oasis Enterprises (P) Ltd. .Appellants

Vs.

C.C.E. Ludhiana .Respondent

.

Appearance:

Shri Naveen Bindal, Advocate for the Appellant

Shri G.R. Singh, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 02.07.2015

FINAL ORDER NO. 52132/2015-CU(SM)

Per Ashok Jindal:

Appellant is in appeal against the impugned order wherein the Ld. Commissioner (A) has modified the order of Adjudicating Authority by directing the re-export of the impugned goods.

2. The facts of the case are that in August 2013 the consignment of Heavy melting scrap was imported by the appellant having quantity of 92.190 MT. On examination the goods were found having slags and sculls. Thereafter goods were unloaded and Chartered Engineer report was sought who observed that the scrap is having irregular shape material, appearing in shape of scull and lumps shaped slag having ferrous material mixed with impurities like floor dust, stone, sand, dirt, etc. He also observed that on visual analysis of the slag these slags appears to be non hazardous in nature. On the basis of the said report, the Adjudicating Authority held that the goods have been mis-declared by the appellant as same are restricted items. Therefore, he confiscated the impugned goods and allowed to be redeemed on payment of redemption fine of Rs.83,600/- and penalty of Rs.5,000/- was also imposed. Revenue was aggrieved from the said order and filed appeal before the Ld. Commissioner (A) on the ground that the sculls and slags are hazardous items and appellant has not obtained permission from the Ministry of Environment and Forest. Therefore, impugned goods are prohibited goods, hence, they cannot be redeemed on payment of redemption fine and penalty. The Ld. Commissioner (A) accepted the Revenues contention and held that as goods are prohibited goods, therefore, directed the appellant to re-export the goods. Aggrieved from the said order, appellant is before me.

3. The Ld. Counsel for the appellant submits that the slags and scull are not prohibited goods. These are restricted goods and same can be allowed to be redeemed on payment of redemption fine and penalty. Therefore, impugned order is to be set aside. He also took the support of the following judicial pronouncements to say that as the goods are restricted items, the same can be redeemed on payment of redemption fine and penalty:

i) BE Office Automation Products Ltd. Vs. CCE Gurgaon-2014 (300) ELT 486 (P&H)

ii) Shri Krishna Impex Vs. CC New Delhi-2014 (300) ELT 98 (Tri-Del)

iii) Wellcare Hospital & Research Inst. Vs. CC(Airport & Cargo), Chennai-2014 (300) ELT 511 (Tri-Chennai)

iv) Alfred Menezes Vs. CC Mumbai-2009 (242) ELT 334 (Bom)

4. On the other hand Ld. AR strongly oppose the contention of the Ld. Counsel and submits that the Chartered Engineer report is not clear, in fact the report has been filed by the Chartered Engineer on visual examination of the goods and report is also vague where it says that it appears to be non hazardous. As sculls and slags are hazardous and appellant has failed to obtain permission of Ministry of Environment and Forest. In these circumstances, the goods cannot be allowed to be imported in India.

5. Heard the parties. Considered the submission.

6. In this case short issue before me is that whether the goods can be redeemed on the basis of the report of Chartered Engineer which states that the items in question appears to be non hazardous in nature or not. I have gone through the report of the Chartered Engineer which has been prepared on visual examination of the impugned goods and he has held that the waste contain irregular shape material, appearing in shape of scull and lumps shaped slag having ferrous material mixed with impurities like floor dust, stone, sand, dirt, etc.. Also held that these slags and sculls appears to be non hazardous in nature. In fact, the Chartered Engineer has not done any chemical test on the goods in question and he has given his expert opinion. Revenue has accepted the Chartered Engineer report in parts holding that it appears to be containing sculls and slags but never accepted the part of the report that these slags appears to be non hazardous in nature. In fact, report is to be accepted in toto and not in parts. If revenue want to say that these slags appears to be non hazardous in nature is a vague report then the observation by the Chartered Engineer that these waste contain irregular shape material appearing in shape of scull and lump is also vague. Further, the scull and slags are not prohibited items. These are only restricted items and same can be redeemed on payment of redemption fine and penalty as held by the Honble High Court of Punjab and Haryana in the case of BE Office Automation Products Ltd. (Supra) and by the Honble High Court of Bombay in the case of Alfred Menezes (Supra) wherein it has been held that if item in question is restricted item, same can be allowed to be imported on payment of redemption fine and penalty. Therefore, following the judicial pronouncements as observed by the Chartered Engineer that the goods in question appears to be non hazardous in nature is a restricted item and same can be redeemed on payment of redemption fine and penalty.

7. In these circumstances, I set aside the impugned order and restore the order of adjudication by the adjudicating authority. With these terms appeal is disposed of.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

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C/55817/2014-EX(SM)