RAGHAV ALLOYS LTD. Vs. COMMISSIONER OF CUSTOMS, AHMEDABAD

JUDGEMENT

(1.) THE facts leading to the present appeal are briefly explained below : (a) On 16 -2 -98, three bills of entry were filed by M/s. Shree Electromelts Ltd. for clearance of Heavy Melting Scrap and on 18 -2 -98, the vessel carrying the scrap reached the Port. The vessel along with cargo was seized on the ground of mis -declaration and undervaluation of cargo. Thereafter, the bills of entry filed by M/s. Shree Electronmelts Ltd. were cancelled on the request of the CHA. The vessel and the cargo were provisionally released by the Customs on 22 -4 -98. In the meanwhile, the appellants filed two bills of entry out of which, the bill of entry No. 3/98 -9 dated 17 -4 -99 for 550 MTs out of total quantity of 1950 MTs. is the subject matter of present appeal. The appellants claimed the benefit of Notification No. 11/97 dated 1 -3 -97 read with condition No. 17. Accordingly, bill of entry was assessed provisionally. M/s. Raghav Alloys Ltd. produced the end -use certificate for 76.385 MTs. against the total quantity of 550 MTs. and consequently, the adjudication proceedings started.

(2.) THE appellants claim they have received only 76.385 MTs. of HMS and the remaining quantity was not delivered to them and therefore, they were not liable to produce any end -use certificate for the remaining quantity and were not liable to pay duty. This appeal is against the confirmation of demand of duty of Rs. 11,12,163/ - ordered by the Deputy Commissioner and confirmed by the Commissioner (Appeals) subsequently not accepting this claim. Shri G. Parthasarthy, Consultant on behalf of the appellants mainly relies on the fact that according to the certificate issued by the Inspector in charge of the factory, which received the scrap for melting and copy of the report of the cargo discharged to support his claim that they were required to give the end -use certificate only for 76.385 MTs. even though the bill of entry was filed for 550 MTs. and assessed accordingly. According to him, no draught survey was conducted and the ship carried scrap as bulk cargo and since the goods were seized by the Customs, Port Officer stated that out turn report will be as per the quantity which is 550 MTs. The second point he has raised is the valuation of the cargo. According to him, the assessable value arrived at by the Department is the result of enhancement of value. The value has been enhanced from $ 120 PMT to $ 185 PMT. He states that no opportunity has been given to them to explain their case before enhancement.

(3.) WE have considered the arguments advanced by the learned Advocate. As regards the quantity, the chronological events show that the appellants have no case whatsoever. Admittedly, the vessel arrived in the Port on 18 -2 -98 and on 17 -2 -98, a request was made by the shipping Agent for conducting draught survey. On 18 -2 -98, surveyor replied after boarding the vessel and discussions with the master that the subject vessel does not have sound calculation of ballast tanks and most of the sounding tank pipes are choked and jammed and the vessel does not have hydrostatic data for the trim correction and displacement calculation on various stage draught. They said that they cannot conduct any survey. The Port Officer of Bhavnagar has also written to Assistant Commissioner of Customs on 18th March, 1998 that port has assumed custody of the cargo for the quantity manifested and out turn report will be prepared for the manifested quantity making it clear that as per the advice of the Superintendent of Customs to M/s. A.J. and Company, who were the Customs House Agents to protect the cargo and be responsible for any type of damage and shortage of cargo.