ORDER
G.R. Sharma
1. Four appeals have been filed in this case challenging the impugned order No.SKS/CC/ICD/TKD/63/2001 dt. 19.4.2001 confiscating the seized goods, reassessing the CIF value and imposing penalty.
2. The facts of the case briefly stated are that the appellants imported a consignment of copper scrap contained in 5 containers and presented Bill of Entry No.003 dt.5.8.2000 for customs clearance. In that Bill of Entry the description of the goods, weight and CIF value were declared as copper scrap ‘dream’ grade as per ISRI, 100.24 MT and Us$ 1065.00 per MT. The invoice Produced alongwith Bill of Entry showed that the goods in question were supplied by M/s. Ransat Marketing Limited, U.K.
3. In accordance with Standing Order No. 1/2000 dt. 6.1.2000, the CIF value of copper scrap of ‘Dream’ grade was fixed as US$ 1250.00 per MT and a discount at the rate of 10% was allowable if the quantity imported was 100 MT Or more. Therefore the value was computed. The duty was computed as Rs. 34,42,059/- which was deposited on 11.8.2000.
4. When the goods were examined on 17.8.2000 in the presence of one of the partner of the importing firm, it was observed that the goods were miscellaneous copper wire scrap having copper pipes/small blocks to an extent 5% only. Therefore it appeared to the customs authority that the goods were of ‘Birch’ variety and not of ‘Dream’ variety as claimed by the importer. Accordingly differential duty was demanded by refixing the assessable value and computing duty on the goods as ‘Birch’ variety.
5. Shri V.Krishna Murthy, ld. Advocate appears for the appellants whereas Shri P.k.Jain, ld. SDR represents the respondent commissioner.
6. The arguments of both sides cantered round the variety of goods. The Departmental Representataive argued that in view of the fact that the samples were taken from the goods container wise and were tested by the National Physical Laboratory, New Delhi who reported result as under:-
Sl.No. Container No. Percentage of Copper
1. EOLU-8826090 89.19]
2. TPXU-7008703 99.15] Average
3. TOLU-2366794 99.00] 95.618%
4. TPHU-6387130 94.39]
5. EOLU-2206180 96.36]
The contention of the department was that since the percentage of copper average 95.618% in the sample tested, therefore the goods were ‘Birch’ variety inasmuch as ISRI Code clearly spelt out that the Birch No. 2 Copper Wire should consist of miscellaneous, unalloyed coper wire having nominal 96% (minimum 94%). As against this, ld. Counsel submitted that the test result conveyed by the National physical Laboratory, New Delhi clearly showed that the percentage contents of copper wire was arrived by them after cleaning the copper wire. Ld. Counsel submitted that it was cleaned copper wire which was subjected to the test and the varnish and other material which was though contained nut was not taken into consideration and, therefore the test results were not applicable. Ld. Counsel also submitted that ISRI Code clearly laid down that “It should be free of the following: excessively leaded, tinned, soldered copper wire; brass and bronze wire; excessive oiled content, iron and non-metallic; copper wire from burning, containing insulation; hair wire; burnt wire which is brittle; and should be reasonably free of ash. Hydraulically briquetted copper subject to agreement.” Ld.Counsel submitted that there is no finding that wires subjected to the test by National physical Laboratory on the basis of samples sent by the Customs authorities were free from those(SIC). The deparment’s argument of this contention of the appellants was that predominately it was copper wire and, therefore it is covered by ISRI Code for ‘Birch’ variety.
7. Ld. DR also submitted that normally it is the trade opinion which is accepted by the importer as well as the department. He submitted that in this case the trade opinion was taken which confirmed that the goods imported were of ‘Birch’ variety according to ISRI Code.
8. WE have carefully considered these submissions. We note that in the instant case no doubt the trade opinion was taken but the fact remains that for qualifying for ‘Birch’ variety of ISRI Code the goods should be free from a number of items and there was no finding in that regard. We also note that in the instant case the goods are still in the custody of the Customs authorities and there is since some doubt about the goods pertaining to one variety or the other. Therefore, we consider it to be a fit case for remand. The case is remanded to the Commissioner concerned to examine the entire evidence again to determine correctly the variety to which they belong after giving the appellants an opportunity to prove their contention by producing additional evidence if necessary and pass appropriate orders in accordance with law.
9. The question of redetermination of assessable value and differential duty should also be taken into consideration after determining the correct variety of the goods imported.
10. Appeals are, therefore, allowed by way of remand.