2011(08)LCX0123

IN THE CESTAT, PRINCIPAL BENCH, NEW DELHI [COURT NO. III]

Ms. Archana Wadhwa, Member (J) and Shri Mathew John, Member (T)

Rose Zinc Ltd.

Versus

Commissioner of Customs, Jaipur

Final Order No. C/349/2011(PB), dated 2-8-2011 in Appeal No. C/388/2007

Advocated By -

None, for the Appellant.
Shri S.R. Meena, SDR, for the Respondent.

[Order per : Archana Wadhwa, Member (J)]. -

On matter being called, none appeared on behalf of the appellant in spite of notice of hearing having been sent to then well in advance. We have accordingly heard the learned SDR and gone through the impugned order.


2. As per facts on record, the appellant who is engaged in the manufacture of Zinc Ingots, Brass Ingots, Copper Cathode and Ingots etc. imported consignment of 64.600 MT of Zinc Dross and filed a bill of entry dated 6-11-2003. The goods were declared as Zinc Dross as per ISRI "Seal" Grade falling under Chapter sub-heading No. 7902.0010 of the Customs Tariff Act, 1995 having assessable value of Rs. 17,81,216/-. The Zinc Dross containing minimum 90% Zinc free of skimming is importable without any restriction in terms of Exim Policy 2002-2007. To determine the zinc content, representative samples were drawn from the imported consignment and sent to CRCL New Delhi. The report of the Chemical Examiner conveyed through his letter dated 10-9-2004 is as under :-

"The sample is in the form of shining, gray metallic pieces of irregular shapes and sizes having oxidized surfaces. It is composed mainly of Zinc together with small amount of iron and siliceous matter. The percentage of composition is as under :

ZINC 92.2% by v/eight

IRON 3.7% by weight

It has also got the characteristics of "Zinc Dross" since the sample under reference is in the form of small metallic pieces. It does not have characteristics of zinc dross 'seal' as per ISRI code."


3. The matter was taken for adjudication and the appellants explained that ISRI had differentiated the zinc dross under various grades like scrub, scam etc. but the same does not fit the nature and characteristics of zinc dross. The prices of the grades are same and as such, the allegation of mis-declaration of zinc dross under the grade 'seal' will not have any effect.


4. Tine appellant's submissions were accepted by the Assistant Com-missioner who finalized the provisional assessment in favour of the appellants. However, on appeal by the Revenue the said order was set aside by the Commissioner (Appeals) on the ground that considering the value of the goods, it was the Additional Commissioner who was the proper officer. Accordingly, the matter was remanded.


5. In the remand proceedings, the Additional Commissioner upheld the ITC violation the and confiscated the goods for redemption of 1.50 lakhs. He also imposed penalty of Rs. 15,000/-. The said order of the Additional Commissioner stands upheld by the Commissioner (Appeals). Hence the present appeal.


6. We have seen the test report of the Chemical Examiner. The same shows the presence of zinc to the extent of 92% by weight i.e. more than 90% in which case it cannot be held to be falling under the restricted category. The lower authorities had relied upon the said report to the extent that zinc dross is not under the grade 'seal'. However, the appellants have contended that these codes like seal, score, gray are different names by ISRI and if the goods are not, seal they would fall under any other grade. Inasmuch as, all the grades are freely importable and attract the same rate of duty, no intention can be attributed to the appellant to mis-declare the goods as seal grade. They have also contended that at the very opinion that zinc dross is not of seal grade chemical examiner has not given any reasons as to why the same does not have the characteristics of seal grade. He has also not given any opinion as to under which category the zinc dross falls. As such, they have strongly contended that the chemical examiner's report is in-complete and un-reliable. It is also seen that the appellants have made a request for retest of the samples which does not stand accepted by the lower authority.


7. We note that admittedly zinc dross are covered by Entry 7902.0010. It is only the items which are other than zinc dross and which are other items mentioned in 7902.0010 would fall under the residuary item 'others' would be restricted item. Even as per the chemical examiner report, zinc dross has more than 92% of zinc content. That is the only criteria to be seen for the purpose of the items being covered under the restricted category. In as much, the zinc contents were admittedly more than 92%, we find no reason to hold that the goods would be under the restricted item. Similarly we do not find any justifiable reason for upholding the charges of mis-declaration of the goods on account of grade of the same. First of all the chemical examiner's report does not give any reason as to why zinc dross in question cannot be considered to be of seal grade. Secondly, it does not give further opinion has to under which category or grade the sample would fall. We note that the appellant request for retest does not get approved by the lower authority. In any case, we note that whether the zinc dross in question is seal grade or any other grade, the same is classifiable under Heading 7902.0000. Even the Commissioner (Appeals) while rejecting the above classification claimed by the importer, has not given any finding on the correct classification of the product. We do not find any mis-declaration on the part of the as-sessee. For the above reasons, we set aside the impugned order and allow the appeal with consequential relief to the appellants.

(Pronounced in open Court on 2-8-2011)

Equivalent 2011 (274) ELT 0417 (Tri. - Del.)