ORDER
S. Kalyanam, Member (J)
1. This appeal is directed against the order of the Additional Collector of Customs, Madras dated ‘nil’ imposing a fine of Rs. 21,0007- under Section 125 of the Customs Act, 1962 (“the Act” for short) in lieu of confiscation of ‘tin plate seconds’ imported by the appellant on or about 23rd August, 1988.
2. Proceedings were instituted against the appellant in connection with the import of which the appellant called as ‘tin plate waste waste’ valued at Rs. 2,12,469 (c.i.f.) on the ground that the goods were not actually ‘tin plate waste waste’ but only ‘tin plate seconds’, not permissible for import under the licence produced by the appellant in regard to the import of the same and the proceedings ultimately resulted in the present impugned order.
3. Shri Arokiaswamy, the learned Counsel for the appellant submits that initially the goods were referred to the Chemical Examiner for examination who had given an opinion that it was not possible for the laboratory to decide whether the materials were as declared by the appellant or otherwise and the adjudicating authority has based his findings on visual examination and the learned Consultant contended that a finding cannot be given against the appellant on visual examination and visual examination alone. It was further argued that the appellant had placed indent with his supplier in Spain only for ‘tin plate waste waste’ as per the indent dated 25th April, 1988 and even the invoice of the supplier describes the goods as ‘tin plate waste waste’. The learned Consultant places further reliance on a certificate dated 28th September, 1988 wherein the suppliers refer to the goods as “non prime and only waste/waste quality”.
4. Shri Vedantham, the learned DR referring to the Import Policy 1988-89 AM contends with reference to para 23(2)(vi)(b) that the terminology ‘seconds’ and ‘defects’ for the purpose of the policy are neither ‘prime’ as per the relevant specification nor melting scrap and that such produces are characterised by metallurgical/surface imperfections but are usable as such either for re-rolling or in some direct industrial applications.
5. I have carefully considered the submissions made before me. The short question that arises for my consideration in the appeal is whether the goods imported by the appellant are ‘tin plate waste waste’ as contended by the appellant or ‘tin plate seconds’ as held by the authorities. The adjudicating authority in para 13, on examination of the goods as made the following observations :-
“13. The representative samples seen by me have revealed that the surface finish and cutting was good. There were very few scratches or dents noticed except those which appeared to be due to handling or transportation. By eye estimation it appeared that the usable area of the Tinplates would be positively more than 75%. It must also be stated that hollow surfaces or straight scratches or extensive brownish or and greenish surface or corrosion of the edges and dents on several places are not noticeable in the samples placed before me. The surface finish and coating also did not appear to be in a patchy or bad condition.”
6. The licensing authorities have definitely envisaged a difference between ‘tin plate seconds’ and ‘tin plate waste waste’. To a specific query in this regard the learned Consultant was not able to offer any satisfactory explanation with reference to the distinguishing characteristics between the two varieties of goods and how, in the circumstances of the case, the goods imported would not fall within the mischief of the definition of ‘tin plate seconds’. No doubt, the appellant had placed indent for ‘tin plate waste waste’ and the suppliers also would appear to have supplied the same. But the crucial question as to whether the goods supplied were actually ‘tin plate seconds’ or ‘tin plate waste waste’ still remains unanswered. The suppliers do not seem to have envisaged or understood the difference between the two varieties of goods and possibly would appear to be under the impression that whatever is not prime quality tin plate is only ‘tin plate waste’. In view of the facts that the licensing authorities have envisaged a difference between the two types of goods and placed ‘tin plate waste’ under Chapter II and since the licence produced by the appellant for the imported goods in question does not specifically mention the goods as ‘tin plate seconds’, I am inclined to think that the goods imported cannot be said to be covered by the licence. I, therefore, confirm the finding of the adjudicating authority and hold that the goods were not covered by the licence.
7. At this stage, Shri Arokiaswamy, the learned Consultant made a fervent plea for substantial reduction in the quantum of fine urging that the goods are meant for actual use and not for sale and the difference being too technical in regard to the goods imported, imposition of fine is not at all warranted in the facts and circumstances of the case. Though I find some force in the plea of the learned Consultant, I am not able to accede to his contention that the appellant must be left with an admonition. In the peculiar facts and circumstances of the case, while confirming the finding of the adjudicating authority, I modify the quantum of fine from Rs. 21,0007- to Rs. 10,0007- (Rupees ten thousand only). Except for the above modification, the appeal is otherwise rejected.