2007(03)LCX0279

IN THE CESTAT, PRINCIPAL BENCH, NEW DELHI

S/Shri S.S. Kang, Vice-President and C.N.B. Nair, Member (T)

Commissioner of Customs, Amritsar

Versus

Kakkar Complex Steel Pvt. Ltd.

Final Order No. 71/2007-Cus.(PB), dated 23-3-2007 in Appeal No. C/03/05

Advocated By -

Shri A.K. Madan, DR, for the Appellant.
Shri Naveen Mullick, Advocate, for the Respondent.

[Order per : C.N.B. Nair, Member (T)]. -

The Revenue's appeal is directed against the order of the Commissioner (Appeals). The grievance is that Commissioner has erroneously set aside the order of the original authority. The dispute relates to classification as well as valuation.


2. Heard both sides and perused the record.


3. Facts leading to the dispute are that the appellant imported "High Carbon Ferro Chrome". It claimed classification under sub-heading 7202.41 "Ferro Chromium containing by weight more than 4% of carbon". Samples from the four consignments were tested at the Customs Laboratory at Delhi and the test results found that Carbon content was 2.2% or less (less than 4%). Based on this, classification was changed to 7202.49 which is for "other Ferro Chromium (less than 4% of carbon)". Revenue authorities also held that Ferro Chromium less than 4% carbon is more valuable and accordingly assessable value was fixed at US $ 0.62 kgs. discarding the import price of US $ 0.34.


4. Aggrieved by the test report, the appellant sought retest of the consignment and this request was accepted and fresh samples were sent to Customs Labortary at Calcutta. However, test could not take place there as a result of damage of samples.


5. When the matter went up before Commissioner (Appeals), it was pointed out that the Customs Labortary at Delhi had made the same error (wrong determination of % carbon) in regard to samples drawn around the same period from another imported consignment in the case of M/s. Sadashiv Metallic Ltd. and that retest at Calcutta had found that the consignment had carbon content as claimed. The contention was that the test report for Ferro Chromium from the Customs Labortary at Delhi during the relevant period was not reliable. It was also pointed out that the appellant is an actual user and it is not in dispute that the imported consignments had been used for the same purpose (production of High Carbon items) as declared. The Commissioner accepted the appellant's contention and set aside the change made in classification as well as in valuation.
The present appeal challenges that order.


¹5. We are not able to find any merit in the contention in the present appeal. The Commissioner could not be faulted for agreeing with the appellant that the test results during the relevant period from the labortary at Delhi were not reliable. He was also right in going by the evidence that the consignments were used for the manufacture of High Carbon steel items.


6. In the result, the appeal fails and is rejected. (Order dictated in the open Court)
1 Paragraph number as per certified copy.

Equivalent 2007 (214) ELT 0084 (Tri. - Del.)