2001(06)LCX0094

IN THE CEGAT, SOUTH ZONAL BENCH, CHENNAI

S/Shri S.L. Peeran, Member (J) and Jeet Ram Kait, Member (T)

NATHAN TRADING CO.

Versus

COMMISSIONER OF CUSTOMS, TRICHY

Final Order No. 980/2001, dated 27-6-2001 in Appeal No. C/R-596/96

Advocated By :   None, for the Appellants.

Shri G. Sreekumar Menon, SDR, for the Respondent.

[Order per : S.L. Peeran, Member (J)]. - This appeal arises from Order-in-Appeal No. 39/96-Cus., dated 5-7-1996 by which the Commissioner (Appeals) has confirmed the order-in-original holding that the impugned goods imported by the appellants were Aluminium frames in rectangular form and it cannot be considered as waste and scrap and they are rightly classifiable as other parts of structures under Chapter Heading 7610.90 of the Schedule of the Customs Tariff. He upheld the allegation of mis-declaration of the goods and also held that they are not covered by OGL and hence held that the declaration made in the Bill of Entry were not correct and was a clear mis-declaration as waste and scrap. For the purpose of arriving at this conclusion, the original authority's findings and examination report were taken into consideration. The examination report and panchnama clearly disclosed that the item were not waste and scrap but they were aluminium frames in rectangular form. The appellants are not present. They have requested the case to be decided on the basis of merits. They have challenged the findings on the ground that there was no Mahazar and there was no examination report and what they have imported were only waste and scrap and they had not committed any violation of provisions of Sections 111(d) and (m) read with Section 3(3) of Foreign Trade (Development Regulation) Act, 1992. They have stated that the Mahazar was drawn with a particular motive and not based on any reasonable belief. There is no application of mind. Both the authorities have passed the order mechanically. They have also contended that the witnesses of the Mahazar who appeared to be ordinary residence of Tuticorin, the names of their parents and their status such as profession, etc. have not been noted in the Mahazar and therefore, Mahazar is a biased document drawn by the customs authorities with ill motives. They contend that the examination report cannot be accepted. The goods do not fall in the negative list and therefore, its re-classification of goods and imposing penalty is not justified.

2. Ld. SDR took us through the entire records and documents to show that Mahazar was correctly drawn. The appellants have not challenged the Mahazar nor they have cross-examined the witnesses before the lower authorities. The examination report clearly showed that the goods were not waste and scrap but they were aluminium frames in rectangular form. The examination report is drawn on the spot inspection and so also the Mahazar was drawn in the presence of witnesses. The appellants not having challenged both and not sought the cross-examination of the appraisers who prepared the examination reports and the Mahazar witnesses, therefore the grievance now taken up is belated and an after thought and requires to be rejected. He also points out that the penalty imposed is very meagre and the appellants have not proved that the goods imported by them were only waste and scrap.

3. On a careful consideration of the entire material on record, we are satisfied that the appellants have not made out any case in their favour. The appellants ought to have sought cross-examination of the Mahazar witnesses to show that the Mahazar was drawn with ill motives. Merely by taking a new ground at the appellate stage is not acceptable as these are fresh grounds now taken up as an after-thought. The examination report is on the basis of on the spot inspection and after examining the goods in as-it-were condition. The report clearly indicates that the item is not waste and scrap but they were Aluminium in rectangular frames. Therefore, both the authorities have rightly held that there was mis-declaration and the item is required to be re-classified and short levy to be recovered. In this case, the short levy as well as penalty are very meagre and there is no infirmity in the order passed by both the authorities. They have rightly concluded that for the purpose of import of Aluminium frames, they are required to get a licence and it does not fall under OGL list. This aspect has not been touched by the appellants and we find that the grounds taken by them both in the appeal as well as in the written submission has no merits and deserves to be rejected. As a result, the impugned order is confirmed and the appeal is rejected.

Equivalent 2001 (133) ELT 0444 (Tri. - Chennai)