ORDER
G.A. Brahma Deva, Member (J)
1. This is an appeal filed by the appellant with reference to the impugned order of the Collector of Customs, Kandla bearing No. KDL/COLLR/24/94, dated 28-3-1994 imposing on the appellant a penalty of Rs. 2,50,000/- under Section 112A of the Customs Act, 1962 by ordering assessment under Heading 7901.20 as Zinc Alloy as against “Zinc Die Cast Dross” declared by the appellant and enhancement of the price from US $ 910 PMT to 672 pounds PMT CIF.
2. The appellants have imported a consignment of 20.440 MT declaring “Zinc Die Cast Dross” “Shelf” and sought clearance under Bill of Entry No. 3500, dated 5-7-1990. The price declared was US $ 910 PMT CIF and the classification sought was under Heading 2620.00 as “Ash and Residues” (other than from the manufacture of iron or steel) containing metal or metal compounds. On an examination it was found that the goods were not covered under the definition of ‘Prime Zinc Die Cast Dross’ “Shelf” as per NARI’s circular NF-85 with regard to the weight of each piece.
3. Shri H.A. Ahmedi, learned Advocate appearing for the appellant submitted that the following points are to be considered in this appeal.
(i) Whether item in question is classifiable under Heading 2620 as Ash and Residues as claimed by the party or under Heading 7901.20 as Zinc Alloys as held by the department.
(ii) Whether department was justified in enhancing the value based upon the metal bulletin dated 21-2-1991.
4. He contended that there was no misdeclaration of the goods as such since the party has declared as ‘Prime Zinc Die Cast Dross’ “Shelf” as per NARI’s specification. He drew our attention to the circular of NARI NF-85 wherein it was said that Prime Zinc Die Cast Dross if it contains Zinc of minimum 85%. He contended that it cannot be classified under Heading 7901.20 as held by the department in view of the nature and description of the goods. However, he emphatically argued that there was no justification in determining the value based on international metal bulletin. He submitted that as per metal bulletin dated 21-2-1991 referred to in the impugned order the international price of Zinc Alloy, remelted (minimum 80%) whereas in the present case admittedly the percentage of zinc content is raised within 94% hence, price referred to in the metal bulletin 98% of zinc cannot be compared with the impugned goods containing 94%. He submitted that the party has taken a specific plea in reply to the show cause notice that price of the impugned goods cannot be compared with the price referred to in the metal bulletin because of variation in the percentage of zinc but this.important point was not considered and no finding was given by the adjudicating authority as can be seen from the impugned order.
5. Shri S. Ramanathan, learned JDR appearing for the Revenue justified the action of the Department in classifying the item as well as determination of the value based upon the metal bulletin. He submitted that issue with reference to the classification is settled in view of the decision of the Tribunal. On hearing the learned JDR with reference to the classification Shri Ahmedi did not raise the classification issue.
6. We have carefully considered the submissions made by both the sides and perused the record. In view of the submission made by both the sides with reference to the classification of the product in question we uphold the impugned order in classifying the item under Heading 7901.20 as Zinc Alloy. As regards valuation, there is some force in the arguments advanced on behalf of the appellant, the department has compared the price of the impugned goods with reference to the Zinc Alloy of 98%. Admittedly, the percentage of Zinc in the impugned goods is of 94% as against 98%. The party has taken a specific plea that in view of variation in the percentage same cannot be compared but there is no finding by the adjudicating authority on this aspect. In view of this, we are of the view that the mater will have to go back for reconsideration on the issue of valuation. The jurisdictional Commissioner is directed to examine the issue of valuation afresh and to pass an appropriate order after providing an opportunity to the appellants. We also observe that the party has declared the goods as per NARI specifications. On going through the relevant circular and contract, we find that the party has declared as such. Since we are remanding the matter on this aspect also will have to be looked into by the jurisdictional Commissioner and may determine the penalty depending upon the outcome of the impugned order on the issue of valuation as well as of misdeclaration.
7. Thus, this appeal is disposed of in the above terms.