ORDER
S.S. Kang, Member (J)
1. The appellant filed this appeal against the adjudication order passed by the Commissioner of Customs.
2. The brief facts of the case are that the appellant made import of copper scrap and declared as copper scrap of “Dream Grade as per ISRI”. Show cause notice was issued to the appellant on the ground that the copper scrap, in question, was in fact of Birch Grade and not of Dream Grade. The adjudicating authority held that the scrap is of Birch Grade and on the ground of misdeclaration, the goods were confiscated and also enhanced the value of the scrap treating as Birch Grade. A personal penalty of Rs. 3 lakhs was imposed on the firm and Rs. 2.5 lakhs on the partners of the firm. The appellant filed an appeal and the Tribunal vide order dated 13-6-2001 remanded the matter to the adjudicating authority for de novo adjudication and the Commissioner confiscated the scrap and also imposed penalties on the ground of misdeclaration of goods.
3. The impugned order is passed in pursuance to the remand order passed by the Tribunal.
4. The contention of the appellant is that after remand, a sample of the scrap was again sent to the National Physical Laboratory and as per the report of the Examiner, the copper contents of the scrap are less than 90% and the sample also shows presence of dirt, etc. The contention of the appellant is that this test was done as such on the samples sent by the Customs authorities. The earlier report which was relied upon by the Customs in the show cause notice are of clean sample. The contention of the appellant is that as per the guidelines of non-ferrous scrap issued by the Institute of Scrap and Recycling Industries (ISRI), Birch Grade consists of miscellaneous unalloyed copper wire having a nominal 96% copper content as determined by the electrolytic assay whereas the Dream Grade scrap shall consist of miscellaneous unalloyed copper scrap having a nominal 92% copper content as determined by electrolytic assay. The test report which examined the samples as such shows that the goods in question are having the copper content less than 90%. Therefore, the appellant had not made any misdeclaration in respect of grade of scrap as well as in respect of the value of scrap.
5. The contention of the Revenue is that dirt part of the scrap is to be removed to arrive at the correct contents of the copper in the sample and after cleaning the sample, the copper contents are about 96%. Therefore, the appellant had misdeclared the goods as Dream Grade scrap.
6. The issue involved in this appeal is whether the copper scrap imported by the appellant are of Birch Grade or Dream Grade as per the guidelines issued by the ISRI. The definitioin of Birch Grade and Dream Grade as per ISRI are given below :
“Birch No. 2 Copper Wire
shall consist of miscellaneous, unalloyed copper wire having a nominal 96%
copper content (maximum 94%) as determined by electrolytic assay. Should
be free of the following : Excessively leaded, tinned, soldered copper wire,
brass and bronze wire, excessive oil content iron and non-metallic, copper
wire from burning, containing insulation, hair wire, burnt wire which is brit-
tles and should be reasonably free of ash. Hydraulically briquetted copper
subject to agreement.”
“Dream – Light Copper
shall consist of miscellaneous, unalloyed copper scrap having a nominal 92% copper content (minimum 88%) as determined by electrolytic assay and shall consist of sheet copper, gutters, downspouts, kettles, boilers and similar scrap. Should be free of the following ; Burnt hair wire, copper clad, plating racks, grinding, copper wire from burning, containing insulation, radiators, fire extinguishers, refrigerator units, electrotype shells, screening, excessively leaded, tinned, soldered scrap, brassess and bronzes, excessive oil, iron and non-metallics, and should be reasonably free of ash. Hydraufically briquetted copper subject to agreement. Any items excluded in this grade are also excluded in the higher grade aboves.”
7. After remand by the Tribunal, the samples were sent to the NPL and according to the test reports, where the samples were tested after cleaning the samples, the copper contents were more than 95% whereas the samples were tested as such, the copper contents were less than 90%. The appellant made import of copper scrap and the copper scrap also includes various other particulars such as oil, dirt, etc. The Birch Grade of copper scrap shall contain copper wire having a nominal 96% copper content (minimum 94%) as determined by electrolytic assay whereas Dream Grade copper scrap shall consist of miscellaneous, unalloyed scrap having nominal copper content 92% (minimum 88%) as determined by the electrolytic assay. In view of the test report which tested the sample as such, the copper contents were less than 90% hence, the scrap in question is of Dream Grade. In such a situation, we find that the allegation of misdeclaration in respect of grade of scrap and in respect of valuation is not sustainable. Therefore, the impugned order is set aside and the appeals are allowed.