KANISHK STEEL INDUSTRIES Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) ON examining the records and hearing both sides, I am of the view that the appeals can be finally disposed of at this stage. Accordingly, after dispensing with predeposit, I take up the appeals.

(2.) THE appellants had imported two consignments of Heavy Melting Scrap (HMS) and filed Bills of Entry No. 749683 and 749696 dated 28.1.2005 for clearance of the goods. The Bills of Entry were accompanied by 'Pre -shipment Inspection Certificates' issued by M/s, Bureau Veritas, Abidjan (capital of Ivory Coast). The Abidjan branch of M/s. Bureau Veritas, was not one of the inspecting agencies empanelled for such purposes by the Customs authorities vide Appendix 28 to the relevant EXIM policy. But the Bombay branch of the same agency was recognized for the purpose at the material time (learned Counsel at this stage submits that the Abidjan branch of Bureau Veritas was subsequently added to the panel of inspecting agencies in Appendix 28 ibid). The EXIM policy had stipulated that metal scrap imports must be covered by pre -shipment inspection certificates issued by recognized agencies. The certificates issued by M/s. Bureau Veritas, Abidjan were not accepted and the goods were accordingly treated as prohibited for import. On this basis, both the consignments were seized and eventually confiscated by the Commissioner under Section 111(d) of the Customs Act. However, option for redemption was given against payment of fine of Rs. 1.20 lakhs and Rs. 3.00 lakhs respectively. Penalties were also imposed on the party under Section 112 of the Customs Act, Rs. 20,000/ - and Rs. 50,000/ - respectively in relation to the goods covered under Bills of Entry No. 949683 and 949696. The present appeals are directed against the orders of the Commissioner.

(3.) AFTER hearing both sides, I find that the goods were provisionally cleared by the importer and used for the intended purpose as evidenced by the 'end -use certificates' issued by the jurisdictional Deputy Commissioner (available on record). On the strength of these end -use certificates as also on the basis of the fact that the Abidjan branch of M/s. Bureau Veritas was subsequently recognized as an inspection agency by the Govt., the appellants are pleading for vacating fine and penalty. Learned Counsel relies on the Tribunal's decision in Northern India Steel Rolling Mills v. Commissioner 2006 (200) ELT 123 (Tri. Del.), wherein, on similar facts, confiscation and penalty were set aside. Learned Counsel also claims support from the Tribunal's decision in Shri Dinesh Mills Ltd. v. Commissioner to his submission that, where end -use certificate is produced, penalty cannot be imposed.