ORDER
S.S. Sekhon, Member (T)
1. After hearing both sides in these stay applications, we find that the main appeals themselves could be disposed of at this stage. Therefore, after waiver of pre-deposit, we take up the appeals for disposal.
2. The importers, who are the appellants herein, had imported consignments of copper scrap and they declared the quality as “Druid”. The lower authorities, after testing the samples, and finding the percentage of copper content to be about 82% approximately, held the imports to be scrap of quality ‘Birch’. No reasons appear for the orders as to how 82% approximate copper scrap content has been arrived at that of ‘Birch’ when normally ‘Birch scrap’ would be of 96% and above copper content.
3. The Revenue, at the last hearing, had been directed to ascertain whether remnant samples were available so that the same could be retested to ascertain the copper content and thereafter determine the grade of scrap and other consequences on goods under import. We are informed by the ld. D.R. that the remnants are not preserved and thus not available with the Custom House.
4. We find that the lower authorities have arrived at the conclusion, after comparing 84% copper content scrap consignments as that of ‘Birch grade’, which to our mind is not permissible, they have also misdirected themselves by applying the London Metal Exchange Bulletin prices for ‘Birch grade’. It is well settled that valuation by comparing with printed prices in foreign publications cannot be a factor on which valuation can be arrived at. Valuation has to be arrived at after following the Valuation Rules. We find that first the appropriate grade of scrap, under import, has to be arrived and thereafter the valuation of value of comparable grade of imported goods has to be ascertained from the data bank with the Custom House and only thereafter duty demands; if any, could be worked out. The question of misdeclaration and consequent liability to confiscation and penalty would arrive only if the grades and the valuation are held to be misdeclared. This exercise, now being directed, is required to be conducted by the original authority and for that purpose the matter is remitted to him. He should, if necessary for valuation and other materials that is proposed to be relied provide to the appellants (importers), copies thereof, and thereafter hear them on all issues and redetermine the question of duty, confiscation, fine and penalty in these appeals.
5. Appeals allowed as remand in above terms.
(Pronounced in Court.)