Page 227 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] PACE INDIA v. COMMISSIONER OF CUSTOMS, BANGALORE 449

agree to re-export ”. In case of prohibited goods the adjudicating authority
has only two options :
(a) to allow redemption on payment of fine; or
(b) to not allow redemption.
13. In view of the above, we find that the condition in the Order-in-
Original that the goods should be re-exported after redemption is liable to
be set aside and we do so.
14. Appeal is allowed to the extent that the condition in the Order-in-
Original that the goods should be re-exported after redemption is set aside.
Further we find that the ratio of the decision of the Tribunal in the case
of HBL Power Systems Ltd. is squarely applicable in the present case. Therefore we
hold that the impugned order ordering for re-export of the goods on payment of
redemption fine is not sustainable in law and therefore we set aside this finding
of the Commissioner (Appeals).
5.2 As far as classification of the impugned goods is concerned, we
find that the appellant is engaged in the manufacture of excisable goods and is
also registered with the Central Excise Department as well as GST and they have
imported total quantity of 13599.5 kgs of small solar cells from Singapore and
Germany. The appellant has also produced before us the Purchase Orders, Bills
of Entry and the Packing List as well as the commercial invoices wherein they
have clearly mentioned the description of the item as ‘small solar cells’ (uneven
cut solar cells) and there is no misdeclaration on his part because the right classi-
fication for the impugned goods is CTH 8541 40 11. Further we find that the Cus-
toms has from the very beginning proceeded on the premises that the broken
solar cells fall in the category of waste and scrap and therefore they have classi-
fied the same under CTH 3825 69 00. Further we find that out of 13,599.5 kgs of
small solar cells imported, it is only 70 kgs. of silicon wafer/solar cells which was
found in broken condition. To classify the imported goods on the basis of broken
solar cells as scrap/waste is not tenable in law because substantial quantity was
not found to be in broken condition. Further we find that the allegation of the
appellant that the imported small solar cells/panel are very fragile in nature and
requires very specialized and careful handling and the damage has occurred on
account of the mis-handling of the imported goods during the investigation
which has resulted in damage to about 70 kgs. of solar cells and in these circum-
stances, appellant cannot be held responsible for broken silicon wafer found dur-
ing investigation. Further we find that both the authorities have mis-read and
mis-construed the reports submitted by the IISc., CPCB and KSPCB. In fact out of
the 3 reports, the crucial and relevant is the report submitted by the KSPCB be-
cause their officers visited the spot and after physical verification, they have ob-
served in their report dated 31-10-2017 that the cut pieces of solar cells of silicon
wafers may be used for various solar applications like assembling of solar lan-
tern, solar light etc. Further we find that both the authorities have wrongly relied
upon the statement recorded during the investigation. The copies of which have
not been supplied to the appellant and has come to the conclusion that the appel-
lants have admitted the misdeclaration. As per the settled law, the burden of
classification is on the Department and in the present case, the Department has
not made any effort to prove the same by any documents except the proceeding
to classify the impugned goods as waste and scrap solely considering breakage
of some of the imported goods and without considering the nature of usage of
EXCISE LAW TIMES  1st May 2020  227