ORDER
Archana Wadhwa, Member (J)
1. All the appeals are being disposed off by this common order as the facts involved are more or less identical.
2. The appellants have imported various quantities of copper druid scrap at the declared value with copper content ranging from 18 to 20%. However, the samples were drawn by the DRI officers and sent for test, as regards the percentage of the copper content. The same was found to be on the higher side as against the declared copper content by the importers. Accordingly, the revenue proposed to enhance the value of the same based upon the contemporaneous imports of similar copper content and duties were confirmed and penalties imposed.
3. The main contention of all the appellants is that there was no mis-declaration as regards the type of scrap imported by them. As regards the copper contents they had contended that the same were declared as per the certificate given by the supplier and there is no deliberate attempt on their part to mis-declare the same. In any case, the copper scrap was not of uniform percentage and was a mix of various type of scrap. Such copper contents are bound to differ from one part of the consignment to another. As such, the result of the test report cannot be made the basis for concluding the exact percentage of the metal content.
4. We find that the above contention stands accepted by the adjudicating authority in so far as the same relates to the scrap being heterogeneous in nature. The adjudicating authority has observed that the importer’s contention that the scrap is not uniform in nature and it is difficult to draw a sample which could correctly show the exact percentage of the entire lot, is not totally out of place. In spite of that he has relied upon the test report on the sole ground that the representative samples were drawn in the presence of the importer or his authorized representative and as such, it is not open to them to contest the finding of the test report at this stage. He has also rejected the appellant’s prayer for re-test of the samples.
5. We do not find the above reasoning of the adjudicating authority to be appropriate. The entire case of the revenue is based upon the test report results. As such, it is necessary that such results are correct. The adjudicating authority has himself expressed doubt about the correctness of the samples drawn from the scrap, which may be rich in copper content at one particular place and poor in copper concentration at other place. Denial of the request of re-test on the ground that the appellants have accepted the finding of the test report is not in accordance with the equity principles of adjudication. The appellants have a right to contest the correctness of the test report and to ask for retest. In the absence of retest report, findings of the first test, when there is an expressed doubt about the same, cannot be made the basis for enhancing the value of the goods or for upholding the charges of mis-declaration. We also do not find any other corroborative evidence to show that the goods were undervalued. We also note at this stage, the samples are not available with the department as contended by the Ld. DR in the previous proceedings. As such, we find no justification for upholding the impugned order, the same are accordingly set aside and all the appeals allowed with consequential relief to the appellants.
(Pronounced in Court on 22-11-2006)