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TMI Blog1985 (7) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... ector of Customs held the enquiry and by his order dated 25-1-1985 ordered confiscation but allowed redemption on payment of fine of Rs. 3 lakhs. Being aggrieved by the said order, the appellant preferred an appeal CD(BOM.) A 142/85 before this Bench. This Bench, by its order dated 5-11-1985, set aside the order of the Addl. Collector and remanded the matter to the Addl. Collector for consideration afresh. After the remand the Collector of Customs, Bombay held the adjudication. The Collector also held that the goods imported were liable for confiscation under Section lll(d) of the Customs Act read with Section 3 of the Imports Exports (Control) Act. He ordered confiscation but gave the importers an option to pay in lieu of such confiscation a fine of Rs. 1,50,000/-. It is this order of the Collector that is the subject-matter of challenge in this appeal. 3. During the hearing of this appeal, Shri Sogani, Consultant, submitted that the burden of establishing that the goods are ivory board was on the Department and the Department had failed to discharge their burden. He contended that the goods imported are not ivory board but are card board covered by the importer s licence. Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pers made from well beaten pulp. There is even distribution and there is no patchy appearance. Hence they have a clear and even look through, which will not be obtained in other boards like mill board and coated boards. Shri Sogani submitted that the present opinion of the Dy. Chief Chemist was diametrically opposite to his earlier opinion which was relied on by the Addl. Collector. Shri Sogani submitted that the earlier opinion of the Dy. Chief Chemist that distinction between the ivory boards and card board is not based on its grammage but chiefly in the high quality of the paper used and particularly in the finish and a high degree of transparency, certain stiffness and ivory tint. The Dy. Chief Chemist had also stated then that the sample tested was found to be a white board having a high degree of transparency and certain stiffness". Shri Sogani submitted that the Dy. Chief Chemist having stated in unequivocal term that a high degree of transparency is one of the characteristics of ivory board, was not justified in ignoring the absence of that characteristic. Shri Sogani further submitted that the sample, which was given to the importer, was got tested by the Department of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport of the Institute of Paper Technology, Saharanpur. He submitted that report had not been produced before the adjudicating authority. The appellant was given an opportunity to adduce fresh evidence in the order of remand but the appellant did not avail of that opportunity. Shri Pal, however, submitted that even the report of the Institute of Paper Technology cannot be relied upon because the test conducted by them was only with regard to the thickness and gloss and no other test. There is no material as to what should be the thickness of the ivory board and therefore the test of thickness will have no relevance. As regards the gloss the test carried out disclosed that it was low which is consistent with the gloss of the ivory board. It was further contended by Shri Pal that the appellant had an opportunity to cross-examine the Dy. Chief Chemist. He had not availed of that opportunity and therefore he is not entitled to challenge his report. The appellant, if wanted, could have requested for testing the sample by the Central Laboratory at Delhi and he had not even availed of that opportunity. Shri Pal also submitted that opacity is not the same as transparency and the report pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concluded that the sample merits to be considered as an ivory based. In his report, Shri Ranganathan has referred to the following Technical Books: (1) Paper and Paper making by P.H. Norris, (2) Paper and its uses by Edward A Dawe, (3) Dictionary and Encyclopaedia of paper and paper making Labarmol. According to the three technical books referred to in the Dy. Chief Chemist s report, the ivory boards are transparent. Besides transparency, they will have low gloss finish, certain stiffness and ivory tint. 7. The test report of the Department of Chemical Technology of University of Bombay was to the effect: That the results show that the opacity of the white card board is 98.9%. For all practical purposes it may be considered as completely opaque. 8. As per the Test Report of the Department of Chemical Technology the sample tested shall have to be considered as a completely opaque. If that be so, one of the important characteristics of ivory board, namely transparency was absent in the sample. 9. In his order, the Collector has observed : The Dy. Chief Chemist has categorically given the opinion that the goods are ivory board. Transparency to the fullest extent is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggshell finish having a high degree of transparency and certain stiffness. According to this opinion, the finish and high degree of transparency should be there in an ivory board. As has been pointed out earlier, the test report of the Department of Chemical Technology, University of Bombay disclosed that the opacity of the sample was 98.9%. For all practical purposes it should be considered as completely opaque. The Collector in his order did refer to this report and he had not stated whether that report should be accepted or not. The Dy. Chief Chemist in his report dated 13-2-1986 had stated something about transparency. The relevant portion reads: The term high degree of transparency used in the T.0.14 dated 22-12-1984 (his earlier report) should be interprerated with reference to the context and in comparison with other printing boards and should not be interprerated in isolation or literally." The most transparent paper (glassine paper) has only 10 - 40% parallel transmittance and a total transmittance of 60 - 85% only and tissue paper has 85% total reflection and only 3% parallel transmittance. An opaque bread board wrapper has an opacity of only 60% whereas an opaque b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... How the imported goods are treated or considered in trade parlance? would have been the best evidence to classify as to whether it is an ivory board or a white card board other than ivory board. In the absence of evidence as to how the trade considered the goods one has necessarily to look into the technical books. Ivory board is described by F.H. Norris as thin superfine quality paste boards formerly made entirely from rag postings. Now usually manufactured from esparto or screw pastings in white mainly, but also in tints with smooth eggshell or low gloss finish and a clear even look through. Some qualities today are made on twin wire machines and thus are not pasted boards . The description of index boards is given by the author as : Pulp boards made from strong stuff furnishes of wood with or without esparto or straw are quite common. The boards must be even, hard-sized, and well rolled to give a good writing surface and lie perfectly flat for accurate ruling, printing and cutting. Made in buff, white and tints for card-index systems in single thickness, as pasted boards bend and split at the corners with frequent handling. The description of Pulp Board is given by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority. It is also true that the appellant was given an opportunity to produce fresh evidence in the order of remand. But all the same to meet the ends of justice we have admitted this additional evidence. In this report, it was stated that the sample had been tested in the Laboratories and following observations were made: (1) It is a thick board and is not produced by pasting together a number of layers, (2) It is smooth with eggshell finish, (3) The gloss of the board is very low, (4) The board is highly opaque, {5) Stiffness could not be tested as our equipment has developed same fault. The opinion given was as such, the sample does not meet the requirement of an ivory board in following respects : (a) Its thickness is more, (b) It does not consist of pasted layers, and (c) It is not transparent. 15. Shri Pal appearing for the Collector had contended that test carried out are only regarding thickness and gloss, as per the test report of the institute. And no standard is laid down as to the thickness of ivory board. And therefore the report of this institute should not be accepted. But then in his opinion dated 22-12-1984, the Dy. Chief Chemist had sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consist of pasted layers. In the said circumstances, we are unable to agree with the finding of the Collector that what was imported was ivory board. 18. Relying on the decisions of the Supreme Court reported in AIR 1963 SC 1319 and AIR 1973 SC 194, Shri Pal had contended that if an entry in the ITC Schedule is capable of two interpretations then the interpretation placed by the Department should be accepted. The ratio of the decision of the Supreme Court in both the judgments is that the High Court under Article 226 of the Constitution had no jurisdiction to interfere with the reasonable views of the Customs Authorities. It may be stated here that the decisions of the Supreme Court are an authority for the proposition, that the High Courts in exercise of their writ jurisdiction, cannot interfere with the possible and reasonable view taken by the Customs authorities in regard to the interpretation of an entry in the ITC Schedule. The decisions would not apply to the appellate authority. As an Appellate Authority, the Tribunal has jurisdiction to examine the correctness of the view taken by the Collector. That apart the decision of the Supreme Court would apply only if alternativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. 23. The main consideration for determination in this present appeal is the question as to whether the goods imported are Ivory Board as held by the Collector or as White Card Board permitted to be imported under the licence produced by the importers. A lot of arguments were advanced by both the sides in explaining the correct nature of the goods imported. They have also relied on the two technical opinions by the Deputy Chief Chemist of the Bombay Custom House, the test report of the Bombay Custom House laboratory, the letter dated 13-9-1986 of the Institute of Paper Technology, Saharanpur the letter dated 14-1-1986 from the Department of Chemical Technology, University of Bombay and other documents. Before I proceed to examine this matter further, I would like to deal with and settle the objection raised by Shri Pal regarding the additional evidence being led by the appellants by submitting the Saharanpur Institute s test report at the later stage. Brother Hegde in para 5 of his proposed order has overruled Shri Pal s objection and admitted this additional evidence. I agree with him in this behalf. The appellants could have sought permission of the Tribunal earlier for sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available under the test memo dated 16-1-1986. This report states as follows :- Sample is a cut piece of sheet of paper board made of chemical wood pulp GSM 315 . The term Card Board includes Ivory Board also. It has got the characteristics of Ivory Board. This test report was elaborated further in the test opinion No. 2204 dated 13-2-1986 of the Deputy Chief Chemist Shri M.K. Ranganathan. This test report also cited the various characteristics of ivory board and concluded that it would not be correct to decide as to whether the goods are ivory board merely on a single characteristic of transparency. The test opinion of the Deputy Chief Chemist was given in the context of the Tribunal s order dated 5-11-1985 for the re-test of the goods for fresh adjudication. After taking all the evidence into account, the Collector in his order under appeal dated 30-6-1986 held that the goods were ivory board and hence not permissible to be imported under the licence submitted by the appellants. Accordingly the Collector confiscated the consignment, but allowed it to be redeemed on payment of a fine of Rs. 1,50,000/-. 26. The test opinion dated 22-12-1984 and the second test opinion dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... University carried out only one test regarding transparency. The Dy. Chief Chemist s opinion dated 13-2-1986 implies that all characteristics should be taken into account in determining whether the board is ivory board or not. Therefore on the basis of tests carried out by the University for one characteristic it cannot be held that the board is ivory. 28. In view of the foregoing circumstances, I cannot accept the test reports carried out by the Institute of Paper Technology, Saharanpur and the University of Bombay in determining the nature of the board imported by the appellants. The Dy. Chief Chemist is the technical adviser of the Customs Department. He has tested the sample and given the opinion and in support of his opinion he has cited the various authorities. The opinion of the Deputy Chief Chemist could have been challenged by subjecting him to cross-examination as argued by the learned SDR. This has not been done. Therefore the opinion of the Deputy Chief Chemist and the test result of the laboratory have remained unchallenged. In such circumstances if any other evidence in produced, like the one from Saharanpur and the Bombay University, it would only show that two in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same is rejected. Point of Difference: Since there has been a difference of opinion between two Members of the Bench, the following point of difference is referred to the President in terms of Section 129-C (5) of the Customs Act: Whether on the facts and in the circumstances of the case the goods imported are classifiable as Ivory Board and therefore the licence produced is not valid for the import. 31. [Order per : V.T. Raghavachari]. - The point of difference between the two Members of the West Regional Bench who heard this matter has been formulated as follows: Whether on the facts and in the circumstances of the case the goods imported are classifiable as Ivory Board and therefore the licence produced is not valid for the import. The said point has been referred for disposal by me as a third member in terms of Section 129-C(5) of the Customs Act. 32. I have heard Shri N.C. Sogani, Consultant for the appellants and Shri K.C. Sachar for the Department. 33. The facts leading to this appeal have been set forth in extenso in the orders of the Members of the West Regional Bench and therefore need not be repeated here. The import was in terms of a licence v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four substances, white or cream, and are used for high-class work, such as visiting, business, and menu cards. Stocked in royal boards, and also in various cut sizes. (4) E.J. Labarre - A dictionary of paper and paper making terms - 1937 Edition (Page 134) : Ivory board or cardboard may be homogeneous i.e. of one thickness or more, produced by pressing several moist webs of paper together or by pasting (PASTEBOARD), the distinction being chiefly in the quality of the paper used and particularly in the FINISH, (sometimes with beeswax) and a high degree of transparency. It is also (U.S.A.) referred to a translucent . (CDP) 36. Since the term look-through is to be found in some of these definitions it will be convenient to the extract the definition thereof in the several books. The same reads as follows: (a) Raghunath Dutt Sons (P) Ltd. (Page 99): It is the appearance of a sheet of paper when looked at against light. (b) E.J. Labarre (Page 149): A term applied to the appearance of paper when held to the light, thus disclosing the texture or FORMATION. The look-through may be WILD or CLOUDY or, as indicative of the method of manufacture, LAID, WOVE, ANTIQUE LAID, MEDIAEVA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced or considered. But here again it was pointed out to him that both Members of the West Regional Bench have already admitted this document in evidence and therefore the admissibility thereof cannot be questioned at this stage. In their report the University of Bombay have stated that the sample had been tested for transparency/opacity and that the test revealed the opacity to be 98.9/% and hence for all practical purposes the goods may be considered completely opaque. Shri Sogani submits that it was only the question of high transparency that was in issue when the appeal was earlier heard by the Tribunal (resulting in the remand) and hence when sample was drawn thereafter the same was got tested by the University for that quality only. The Saharanpur Institute in its report mentions that the sample was a thick board not produced by pasting together a number of layers; it was smooth with eggshell finish; it had low gloss and was highly opaque. Shri Ranganathan appears to have been enquired about this finding of the Bombay University. In answer to such queries (by then he was Deputy Chief Chemist) he has stated in his report dated 13-2-1986 that transparency alone was not the sole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the reports of the University of Bombay and Saharanpur Institute) establishes it beyond doubt that the goods in issue cannot at all be called ivory board. In this connection it may be noted that though in his report dated 22-12-1984 Shri Ranganathan had declared that the sample tested had high degree of transparency he had not subsequently in his report dated 13-2-1986 fully stood up to this position. He stated therein that transparency is a relative term and that to find out as to what would be the extent of transparency or opacity that would distinguish the ivory board from other paste board it would be necessary to compare a standard ivory board of identical thickness with the goods in issue. In the several books cited it has been mentioned that the comparative degree of opacity could be identified by covering a printed matter with a standard board and by the goods to be tested. It is not known why such a test could not have been carried out by the Deputy Chief Chemist at least after the report of the University of Bombay was obtained and his opinion was sought with reference to contents thereof. 43. Shri Sachar contends that no cross-examination had been sought for of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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