GARG CASTEELS LTD. Vs. COMMISSIONER OF CUS., BHAVNAGAR

JUDGEMENT

(1.) M /s. Garg Casteels Ltd. had imported melting scrap for use in the induction furnace and claimed the benefit of Notification No. 21/99 dated 28 -2 -1999 read with the Condition No. 17. The Bill of Entry was assessed provisionally and the time of provisional assessment, the value as well as the quantity had been modified upwards by the Assessing Officer. Since the appellant could not produce the end -use certificate, the adjudication proceedings were started by issue of show cause notice demanding differential duty on the basis of revised quantity and the value indicated in the bill of entry at the time of provisional assessment. After adjudication and the appeal process, the appellants are before the Tribunal against the order passed by the Commissioner (Appeals).

(2.) THE Commissioner (Appeals) did not agree with the adjudicating authority as regards the quantity of scrap imported and held that the quantity assessed in the invoice that is 2635.700 MTs has to be taken as the quantity for the purpose of assessment. However, he did not accept the contention of the appellant that the quantity should be taken as 2594.310 MTs. which was the quantity received by them in the factory and used by them for which the end -use certificate duly certified by the concerned Deputy Commissioner has been submitted. However, he did not accept the appellants argument against the valuation of the goods imported on the ground that the issue of valuation was decided by the assessment order dated 2 -12 -1999 and no appeal was filed against the same.

(3.) WE have heard both the sides. The learned Advocate pointed out that the quantity imported by them was revised to 2849.700 MT by the assessing officer by working backwards from the total weight of ship which was imported with the scrap. The ship was sold separately and the scrap transferred to Customs Bonded warehouse. However, the appellants filed Bill of Entry for 2635.700 MT and since that was the quantity transferred to Customs bonded warehouse. This has been discussed in detail by the Commissioner in his order. However, the Commissioner (Appeals) failed to appreciate that they had actually received only 2594.310 MTs. in their factory which was certified and have been used as per the Notification. The balance quantity was lost due to pilferage etc. As regards the value, he stated that the Commissioner (Appeals) failed to appreciate that the assessment order dated 2 -12 -1999 was not final assessment order as mentioned by the Commissioner (Appeals) but only a provisional assessment order. The genuineness of the price actually paid by the appellant has not been questioned at all and, therefore, the same should be accepted. He also cited the following judgments in support of his contention that even if the assessment was provisional only because the quantity was not finalized, it has to be treated as provisional for all purposes :