ORDER
G.A. Brahma Deva, Member (J)
1. All these appeals involve common issues and, therefore, they are clubbed together and are being disposed of by this common order.
2. Shri Harbans Singh, learned Advocate, appearing for the appellants in all these cases submitted that main issue to be considered in these cases is whether Acrylic waste/Synthetic waste is classifiable under Tariff Item 1S-IV as held by the Department or under T.I. 68 of the erstwhile Central Excise Tariff Act med by the party for the purpose of countervailing duty, in addition to the issue whether Department was justified in discarding the invoice value and ordering for confiscation of the goods as well as imposing penalty in all these cases. He said that appellants have placed order for supply of wool waste, but by mistake the supplier has sent Synthetic waste. Department was wrong in classifying the item as Acrylic Fibre instead of Acrylic waste or synthetic waste He said that item was tested and retested and referring to the test reports, he said that the sample is in the form of heterogenious mixture of Mass of different coloured short fibres, yarns cutroving and strands of fibres. It is non-celluiosic and is composed of Acrylic Fibres/wool. In some cases, it is composed mainly of Acrylic Fibres and in some cases composed of wool but nevertheless it consists both as can be seen from the test reports with reference to samples in each case and it is clear from the reports that it is only waste and not fibre as such. The issue with reference to the classification of the item in question for the purpose of countervailing duty has been squarely covered by a series of decisions and referred to the following decisions in support of his contention;
1. CEGAT Order No. 396/84-D, dated 17-7-1984 in the case of Oswal Woollen Mills Ltd. v. Collector of Customs.
2. CEGAT Order No. 290/88-D, dated 25-4-1988 in the case of Punjab Processors Ltd. v. Collector.
3. 1990 (46) E.L.T. 214 (R.K. Synthetics and Ors. v. Union of India and Ors..)
4. CEGAT Order No. 395 to 459/86-D, dated 30-6-1986 in the case of Collector of Customs, Chandigarh and Collector of Customs, Bombay v. Punjab Processors Ltd., and Ors..
5. Madras High Court Judgment dated 3-1-1990 in Writ Petition No, 1094/89.
6. Supreme Court Judgment dated 5-9-1994 in SLP C. No. 10075-77 of 1991.
7. 1991 (52) E.L.T. 405 (Collector of Customs v. Indian Scientific Glass).
8. CEGAT Order No. C/101 to 122/93-D, dated 24-3-1993 in the case of Sriyansh Knitters v. Collector.
9. Madras High Court Judgment dated 12-12-1993 in Writ Petition No, 7044-7046 of 1982.
10. Supreme Court Judgment dated 6-1-1995 in C.A. No. 4179/88 in the case of Collector v. Punjab Processors.
11. Supreme Court Judgment dated 13-1-1995 in C.A. No. 242-306/95 in the case of Collector v. Punjab Processors.
He referred to the order of the High Court of Madras on the Writ Petition filed by the appellants in Appeal No. C/362/82-D wherein it was directed by the High Court as per W.P. Nos. 7044 to 7046/1982, dated 17-12-1993 that Assistant Collector is to assess the duty under Entry 68 of the Central Excise Tariff Act for the relevant period and petitioner will thereafter pay the duty as assessed under Entry 68 of the Central Excise Tariff. Further Division Bench of the Madras High Court has upheld the view of the Single Judge holding that non-cellulosic Synthetic waste would fall only under Tariff Item 68 following the decision of the Bombay Court in the case of R.K. Synthetics and Fibres Private Limited and Anr. v. Union of India and the order of Madras High Court was challenged by the Department before the Supreme Court but same was dismissed as per order of the Supreme Court dated 5-9-1994. He said that there is no difference in between wool waste and Synthetic waste as value is concerned and similar imports made by the appellants for similar price has not been taken into consideration in determining the assessable value. He said that in the facts and circumstances of the case quantum of redemption fine as well as penalty is excessive and arbitrary and requested to set aside the same.
3. While countering the arguments Shri M.K. Jain, learned SDR submitted that since High Court has directed the Assistant Collector to determine the item in question under 68 and to assess accordingly in Appeal No. 362/82, the issue with reference to classification of the product in question for the purpose of countervailing duty in all the remaining cases may also be remanded to the jurisdictional Assistant Collector to decide the issue with reference to respective test report in each case. As regards value he has nothing to argue as there was contemporaneous evidence placed on record by the Appellants but as regards redemption fine as well as penalty the Department was justified in imposing the same since the appellants have misdeclared the goods. They have declared as wool waste but imported Synthetic waste and since Synthetic waste was not covered by valid licence, hence the Department was right in initiating action under Section 111(d) as well as under Section 111 (m) of the Customs Act and, accordingly, Department was justified in ordering confiscation as well as imposing penalty for misdeclaration and contravening the provisions of the Central Excise law. He said that issue with reference to confiscation as well as determination of quantum of penalty may also be remanded to the concerned Authority for reconsideration. In reply, Shri Har-bans Singh submitted that in similar facts and circumstances in the case of Collector of Customs v. Indian Scientific Glass (supra), one Member has taken the view that the matter will have to go back for reconsideration but it was held by the majority that there was no case for remand but Synthetic waste in the form of white Mass fibre, cut slivers and rolling of different length are classifiable under Item 68 and not under 18 IV for the purpose of countervailing duty.
4. On a careful consideration of the submissions made by both sides with reference to the facts, we find that issue of classification of the goods in question for the purpose of countervailing duty has been covered by the decisions referred to above by the learned counsel for the appellants. Since the item is non-cellulosic waste, as can be seen from the test reports in each and every case, following the ratio of the aforesaid decisions we hold that item in question in all these cases is classifiable under Item 18 (iv) of Central Excise Tariff for the purpose of countervailing duty. Next question is with reference to valuation. Since nothing has been placed on record to show that prices of imported goods were comparatively low, we do not find any justification in discarding the invoice value and, accordingly, invoice value is to be accepted in all these cases. But there is some force in the arguments advanced by the learned D.R. that redemption fine as well as imposition of penalty was not only for undervaluation but misdeclaration of goods inasmuch as contravention of Section 111(d) as well as under Section 111(m) of the Customs Act. We hold that Department was justified in ordering for confiscation and imposing penalty. However, having regard to the facts and circumstances of the case, we are of the view that quantum of fine as well as penalty requires to be reduced. Accordingly, redemption fine is reduced to 5% of the C.I.F. value as against 10% redemption fine in all the cases and as far as penalty is concerned, it is reduced to Rs. 15,000/- as against Rs. 45,000/- as per common impugned order in Appeals No. C/263/83-D and C/283 to 288/92/D, Rs. 10,000/- as against Rs. 30,000/- in Appeal No. C/362/82-D and Rs. 25,000/- as against Rs. 75,000/- in Appeal No. 268/83-D and 289 to 294/92-D, respectively. All these appeals are disposed of in the above terms.