Anil G. Shakkarwar ORDER
Archana Wadhwa, Member (J)
1. As per facts on record, the appellant is manufacturer of 'Aluminum Ingots and for the said purpose they imported aluminum dross under the cover of two Bills of Entry dated 10 March, 2016 and 05 April, 2016. The said Bills of Entries were presented for first check basis along with documents like commercial invoice, packing list, Bill of lading and recoverable aluminium content stated to be around 21-22%.
2. The said goods were examined by the Revenue and samples were drawn for further testing by CRCL. As per the report of CRCL dated 04 April, 2016 and 25 April, 2016 the samples were found to be in the form of grayish pores metallic lump of irregular shapes and size having oxidized surface. It is composed of aluminium and it is oxidized with small amount of iron, led, silicon and water soluble salt. The quantity of aluminium was estimated to 77.8% and 71.1% respectively in both the samples. In respect of Bill of Entry dated 10 March, 2016 the aluminium contents were expected to be around 58%.
3. Inasmuch as the said report only gave the estimated quantity of aluminium in both the samples and had not expressed the view of recoverable aluminium, retesting was conducted and for the said purpose Joint Director of CRCL visited the manufacturing premises and supervised the process of extraction of aluminium from aluminium dross. However, the said process was undertaken not out of the samples drawn from the imported lots but otherwise. The report based upon the said process of recovery of aluminium metal in respect of Bill of Entry dated 10 March, 2016 was shown as 71% and in respect of Bill of entry dated 05 April, 2016 was to the extent of 54%.
4. Based upon the above reports the proceedings were initiated against the appellant by way of issuance of show cause notice dated 08 July, 2016 proposing enhancement of the assessable value of the goods based upon the calculation of recoverable percentage of aluminium and the prices as reflected in the LME on the relevant date. The said proposals were made under the provisions of Rule 9 of Customs Valuation Rules. The notice was adjudicated and it was observed that since there is no contemporaneous imports so as to adopt value of the same, the method of calculation of assessable value was based upon the prime metal value as reflected in LME. Further as regards payment of CVD on the goods in question the issue was not discussed by the Original Adjudicating Authority. The Commissioner vide his impugned order rejected the transaction value declared by the appellant and enhanced the same in both the entries thus confirming the demand of differential duties in respect of both the bills of entries to the extent of Rs. 3,22,127/- and Rs. 11,72,624/-. He also imposed penalty of Rs. 9 lakh on the appellant in terms of the provisions of Section 112(a) of the Customs Act and penalty of Rs. 1 lakh under Section 114(AA) of the Act. Further the goods imported by the appellant were held liable to confiscation. Since the same were provisionally released, redemption fine of Rs. 17 lakh was imposed on the appellant. The said order of the Commissioner is impugned before us.
5. After hearing both the sides duly represented by learned advocate Shri Priyadarshi Manish appearing on behalf of the appellant and learned AR Shri Mohammad Altaf appearing on behalf of the Revenue and after going through the impugned order, we find that the appellants had filed the bills of entry declaring the goods as aluminium gross with recoverable quantity of aluminium ranging from 21% to 22%. All other documents like invoice, packing list, bill of lading etc were filed along with the said filing of bills of entries and the goods were presented for fist check examination. The appellants main contention is that the value has been enhanced base........