9911796707
TMI Blog1993 (8) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... nd wires in coils be segregated, and, whereas the scrap may be assessed for the duty, at the rate as declared in the Bills of Entry filed by the appellants, the copper wires be assessed at the rate of Rs. 50,482.50 per tonne on the basis of LEM price of 2092.50 as prevailing on 4-6-1988, and duty be collected accordingly. 2. The cross-objection filed by the Respondents are more in the nature of para-wise remarks to the contentions raised by the appellants and no specific relief in relation to the impugned order-in-original is claimed. 3.1 The appellants, through their CHA, filed two Bills of Entry for home consumption, for two consignments one of 40 drums, with declared value of Rs. 3,17,153.24 and another of 39 drums, with declared value of Rs. 3,18,233.40 ps, both declared to contain copper scrap, and paid appropriate duty. On examination of some of the drums, the same were found to have contained copper wires in coils concealed under the scrap, and hence the matter was entrusted to SIB (Special Investigation Branch) of the Customs House. The investigations revealed that the copper wire in coils were bundled separately with tags indicating marks SML and giving net and gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication proceedings before a specified date, but kept the appeal pending. 3.2 On 4-10-1988, the department sent the samples for testing at the Customs House Chemical Laboratory, and the test report dated 6-10-1988, was to the effect that the sample was other than the scrap and appeared to be unused copper wire, brown in colour with diameter of 2.98 mm and purity above 99.9%, which was above minimum standard specified by Indian Standard for conductors and could be drawn to take suitable conductors of finer guage for use in the cables and wires. 3.3 Meanwhile, the appellants had already written a letter dated 26-7-1988 contending that they had, at no time, ordered for a prime quality copper coils and that the goods imported were mere scrap of copper. They submitted that the price of prime quality copper wire would be much higher than what they had paid, which also indicated that what was imported could not be anything but the scrap. The appellants had also indicated therein that they were ready and willing to undertake further mutilation at their cost. The appellants also produced the documents in the nature of correspondence from the foreign suppliers to the effect that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten statement of defence was filed on 7-10-1988 and the explanation was also given vide their earlier letter dated 26-7-1988, the adjudicating authority has merely referred to them without examining or discussing them in details and as such they have not been given a fair deal. It is also contended that though the photographs of the subject consignments have been taken and relied upon, they were merely shown to the appellants during the course of personal hearing, and the copies thereof were not given to them in advance, and similarly the copy of the test report of the departmental laboratory was also not furnished beforehand. In the submission of the Ld. Advocate, the adjudicating authority has also overlooked previous clearances of similar consignment, as also clearance permitted by other Customs Houses on further mutilation. The Ld. Advocate also produced the copies of the orders passed by the Collectorate at Bombay as also at Calcutta. It is also contended that the conclusion is drawn by the authority below merely on assumption and presumption as only three drums have been examined by the special officer from the High Court, and two by the departmental officers, out of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils were taken as scrap, as burden to prove the same lay on the importers. In support of his submission, he referred to the decision in Kanungo Co. v. Collector - 1983 (13) E.L.T. 1486 and another reported in AIR 1961 S.C. 1474. 4.5 The Ld. SDR has then pleaded that the coils being not the scrap, the import is hit vide Appendix 3A Item No. 521 of the Policy Book AM 1988-91 requiring specific licence, and that the rate of duty chargeable would also be different. 4.6 As to the proper valuation, the ld. SDR has pleaded that there is a virtual admission from the appellants that the value of prime quality copper wire would be much more than that of scrap. He also referred to the decisions in Photo Copy Centre v. Collector, 1991 (56) E.L.T. 801 and Shiv Shakti Enterprise v. Collector, 1991 (52) E.L.T. 439. 4.7 For the allegations in relation to non-consideration of certain documents by the adjudicating authority, the Ld. SDR has pleaded that the authority has given due consideration to the submissions, and some stray observation, has not affected the final conclusion. He has also pleaded that final conclusion is based, more on the undisputed factual position and the authority has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the allegations against them, could justify the remand and de novo adjudication, but here, the photographs are only those which were taken at the initiation of the special officer appointed by the High Court, on the application of the appellants, and were even shown to High Court where the special officer submitted his report, and the appellants had full knowledge thereof as the documents being used against them even when they opted before the High Court to waive issuance of the show cause notice. As regards non-supply of the copy of the test report, it appears from the observation in the Order-in-Original, that even during the course of adjudication proceedings, an offer was made to get second test report obtained, which was negatived by the advocate then representing the appellants. There is no denial to the said observation and hence need not be doubted. Further, as is observed in the Order-in-Original, even the Calcutta High Court (Single Judge) directed the sample testing to be done at the Hindustan Copper Ltd., and the appellants here, approached the Division Bench of the same court by filing an appeal. There is no denial to this averment, and therefore, appellants apat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he adjudicating authority for a second test, which also has been not accepted by the appellants. Such an approach, though by itself may not be a piece of evidence, certainly provides a tacit support to an inference that the wires in coil are really new and usable item and not scrap. 7.4 The test report obtained by the department from their own laboratory is to the effect that wires are new, unused and have the shining. The report also mentions that the wires are capable of being used as electric conductors and could be re-drawn to make suitable conductors of finer guage. No contra evidence is brought on record, except the mention by the special officer appointed by the High Court, that the wires appeared to be old and had no shining. Apart from the fact that that laboratory test ought to be given greater weight against an opinion of a person who is not an expert, what the special officer has mentioned, is based on mere cursory visual examination. 7.5 Under the circumstances, it is not possible to accept the contention that the wires in coils could be considered as old and/or rejects so as to categorise them as scrap. 7.6 As per HSN, scrap could be only such an item which is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that coils were merely treated as scrap by the foreign suppliers, and that therefore, part of the scrap consisted of rejected wires in coils, they would have certainly desired that the entire consignment be examined to ascertain the total percentage of wire in coils amongst the scrap. The appellants however having obtained specific directions from the High Court, have consciously waived the examination of the entire consignment. This confirms the inference that about 50% of the consigned articles are in the form of wires in coils. 11. Wires in coils are not considered as scrap and import of prime quality copper wire in coils is not permissible under OGL during the relevant policy period. The import thereof is rightly held as unauthorised, as the appellants do not hold any requisite licence. 12. The authority below has however, ordered confiscation of entire consignments. They do not appear to have invoked the provisions of Sec. 119 of the Customs Act. What is unauthorisedly imported is the copper wires in coils and provisions of Sections 111(d), (m) and (i) could stand attracted only in relation thereto. The order of confiscation therefore has to stand modified to that exte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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