ORDER
K.S. Venkataramani, Member (T)
1. The appellants, herein, imported a consignment described in the Bill of Entry dated 12-4-1990 in Delhi Custom House as synthetic hard waste. The goods were subjected to 100% examination and it was found that out of the consignment a quantity of 6315.05 Kg. is soft waste and 11,727.95 Kg. is hard waste. The former is valued higher and carries a higher rate of duty. The appellants submitted their explanation by their letter dated 13-7-1990 and sought adjudication after being heard in the matter. During the proceedings before the Additional Collector, the appellants also produced a certificate from a Textile Technologist, Sh. Anil Gupte, who opined on inspection of the consignment that the goods are hard waste only. The Additional Collector rejected this evidence pointing out that the inspection by the expert was not shown to have been as per Imported Packages (Opening) Regulations, 1963 in the presence of proper officer of Customs. The Additional Collector also held that technically also source of hard waste and soft waste are different and that it was also difficult to accept (as opined by the expert) that 35% of yarn or yarn bits could have become fibrous in transit through friction because the Additional Collector noted the goods had been packed in containers with low friction. The Additional Collector, however, accepted for purposes of assessable value of soft waste, the price as ascertained by the appellants from their suppliers. He confiscated the soft waste for misdeclara-tion under Section 111(m) of Customs Act, 1962 fixing a fine in lieu of confiscation of Rs. 55,000/- and also imposed a penalty of Rs. 5,000/- under Section 112 of Customs Act, 1962 on the appellants and also ordered that the quantity of soft waste and hard waste be separately assessed to duty on merits vide the Additional Collector’s impugned order dated 5-11-1990.
2. Shri Hari Om Arora, learned Counsel appearing for the appellants submitted that the appellants case is covered by a precedent decision of the Tribunal in the case of Amarson Woollen Mills v. Collector of Customs, Delhi in its order C/521/91-D dated 26-12-1991 [reported in 1992 (61) E.L.T. 756 (Tri.)]. That was also a similar case where the Department had proceeded against the imported consignment declared in the Bill of Entry as hard waste but found to consist of a portion that answered the description of soft waste. The Tribunal had allowed the appeal accepting the contention that the consignment was only hard waste. The learned Counsel, further, submitted that the appellants had got the consignment inspected by a textile expert one Shri Anil Gupte and had submitted his certificate that the consignment was only hard waste before Additional Collector during adjudication proceedings but the Additional Collector had not given it due consideration and in this context, further, referred to the permission obtained by them from the C.W. Corporation for such inspection which is on record. The learned Counsel urged that no valid ground has been made out to over rule the evidence of expert opinion.
3. Sh. J.N. Nair, learned D.R. contended in this case after initial percentage examination of the goods, a 100% examination of the goods had been undertaken in the presence of appellants representatives and the consignment was found to consist of soft waste and hard waste and this position had been accepted by them and it was only subsequently, when proceedings were initiated that the expert had been brought into the picture. The learned D.R. referred to and reiterated the Additional Collector’s reasoning clearly showing that the opinion given by the expert was procedurally irregular and, therefore, unreliable, and even technically also unacceptable.
4. The submissions made by both the sides have been carefully considered. The question to be decided is whether the consignment imported consisted of certain quantity of ‘soft waste’ assessable to duty at higher rate on enhanced value and also whether there has been misdeclaration of the description of the goods in the Bill of Entry by the appellants. The appellants have produced before the Additional Collector the opinion of one Sh. Anil Gupte a qualified textile technologist who on inspection of the consignment had opined as follows saying the goods are only hard waste :
“This is to certify that I inspected the lot of syntehtic hard waste imported by M/s. Kishore Spinning and Weaving Mills, Panipat vide Bill of Entry No. 151147 dated 12-4-1990 at C.F.S. on 28-5-1990. After examining the consignment in detail I have my following observations in the matter :
That this consignment is synthetic hard waste but some of the entangled yarn is in open shape (untwisted i.e. very short lengths of rovings of very narrow diameter in maximum lenghts of .5 to 1 ft.). Due to them being tightly packed and constant friction between the entangled waste same have opened up but nevertheless cannot be classified as soft waste. The consignment has been correctly classified as synthetic hard waste”.
5. This opinion had been relied upon in the proceedings before the Additional Collector. The rejection of this expert opinion on the ground that no permission from proper officer of Customs as required under the Regulations for such inspection had been taken has been rebutted by the appellants who have produced the permission obtained from the custodian of the goods from the C.W. Corporation. In any case the Additional Collector in fairness could have obtained the opinion of the Departmental Chemical Examiner or could have met the appellant’s say in the matter by ascertaining the commercial understanding before repelling their arguments on other technical grounds based on source of the 2 types of waste for which authority relied upon has also not been disclosed in the order. The mere fact that the CHA entrusted with the clearance of the goods had accepted the result of the visual examination of the consignment cannot be the sole basis when the importer himself had made various relevant submissions resisting the proposed action by the Department. It is not also disputed that the order had been placed through the Indian indentor on the foreign supplier only for hard waste and the goods had been invoiced as such. The further fact that the Department had accepted the valuation for soft waste as given by the supplier will also be a factor for concluding the bona fides of the appellants in the matter. In such a context the ratio of the Tribunal decision in the case of Amarson Woollen Mills v. Collector of Customs, New Delhi (supra), in its Order No. C/521/91-D, dated 26-12-1991 reported in 1992 (61) E.L.T. 756 (Tri.), becomes relevant wherein the Tribunal found in a similar case of disputed classification of imported goods as hard waste and soft waste wherein the Department had also relied upon the Chemical Examiner’s Test Report on a sample from the consignment, the Tribunal had been inclined to extend the benefit of doubt to the appellants therein in the absence of proof regarding commercial understanding based on market enquiry. In the present case also, it is felt, for the reasons already set out above, that there is sufficient scope for extending the benefit of doubt to the appellants herein and on this basis the appeal is allowed.