Judgment:
For reasons recorded below, we waived pre-deposit of duty confirmed on used rails imported by the appellants at the rate applicable to goods falling under CTH 7302 01 90, denying the benefit of S.No.200 of the Table to Notification No.21/2002-Cus. dated 01.03.2002 on the ground that the goods were not melting scrap of iron and steel covered under the above Sl.No., and penalty of Rs.3 lakhs imposed upon the appellants and proceed to decide the appeal itself finally at this stage with the consent of both sides as the main grievance of the importers is that of contravention of the principles of natural justice, and after granting the prayer for early hearing of the appeal.
2. The importers filed a bill of entry dated 31.03.2009 through their CHA for clearance of goods declared as foundry grade heavy melting scrap and claimed the benefit of Notification No.21/2002-Cus. Vide letter dated 25.06.2009, the importers were informed by Assistant Commissioner that on examination, the cargo was found to be of used rails which would not be covered under CTH 7204 49 00 as claimed and that the goods would fall for classification under CTH 7302 10 90 and that since the goods were used rails, they were restricted for import in terms of para 2.17 of the Foreign Trade Policy and the goods required import licence for clearance. After hearing the importers, the Commissioner concluded that the goods were not heavy melting scrap, on the basis of a report dated 20.07.2009of National Metallurgical Laboratory, Chennai, that 90% of the consignment consists of re-rollable scrap and only 10% consists of heavy melting scrap and hence not eligible to the benefit of S.No.200 of the Table annexed to the Notification 21/2002-Cus. dated 01.03.2002 and held that the goods were not classifiable as used rails under CTH 7302 10 90 and ordered confiscation of the goods in the absence of a licence to cover their import with an option to redeem them on payment of a fine of Rs.6 lakhs and imposed a penalty of Rs.3 lakhs on the importers.
3. We find that the report of National Metallurgical Laboratory was obtained after the last hearing before the Commissioner which took place on 07-07-2009 and the copy of the report was not furnished to the importers. Hence the order suffers from the vice of violation of the principles of natural justice. We, therefore, set aside the impugned order and remit the case for fresh decision on the correct classification, licence angle etc. to the juriscitional Commissioner, who shall pass fresh orders after extending a reasonable opportunity to the assessees of being heard in their defence. He shall pass fresh order within a period of three months from the date of receipt of the order of the Tribunal.
4. The appeal is thus allowed by way of remand.