RAM PRAKASH Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) AS these 4 appeals have arisen out of a common Order -in -Original No. 60/97, dated 19 -9 -1997 passed by Commissioner of Customs, New Delhi, these are being disposed of by a common order.

(2.) BRIEFLY stated the facts are that Customs Officers, New Delhi on the basis of message received from Lucknow Customs, seized copper scrap weighing 22,966 kgs. valued at Rs. 34,44,900/ - at old Delhi Railway station. The seized copper scrap was booked from Raxaul, a border town, under different parcel way bills in the names of different persons. One Shri Suman Kapoor, Advocate, under letter dated 28 -9 -1992 claimed the brass scrap on behalf of his numerous clients. He was asked to furnish complete particulars of the consignees but no reply was received from him. On enquiry, the Assistant Collector Customs, Raxaul intimated, under letter dated 28 -2 -1993 that the identity of consigners could not be ascertained from Raxaul Railway Station in absence of their complete address. Subsequently under different letters received on 5 -1 -1993 in Commissionerate, all the 4 appellants claimed the ownership of the scrap as under: -

(3.) MS . Reena Khair, the learned Advocate, submitted that the appellants are traders in scrap items of metal and old utensils; that they had despatched scrap from Raxaul to Delhi by train for sale; that the charge in the show cause notice was that the goods had been imported from Nepal in violation of Notification No. 76/65 -Cus. which prohibited import of goods from Nepal which had been imported into Nepal from a third country; that for attracting the provisions of notification, two requirements are to be met - (i) goods had been imported from Nepal, and (ii) the goods were not of Nepalese or Indian origin; that neither of these two requirements had been met. She further submitted that for showing foreign origin reliance was placed on the expert opinion of Jai Prakash Gupta; that he was not an expert in this field as he had never imported scrap; that there were no markings on the scrap to indicate their origin; that he was not aware of any determinate criteria by which he could determine the origin of the scrap; that he was not aware of the exact country of origin of scrap; that it was held by the Tribunal in Amar Dutta v. Collector of Customs -1990 (49) E.L.T. 61 that a visual examination was not sufficient to hold that the goods were of foreign origin. Moreover in the cross -examination he stated that he was able to identify the origin of the scrap on the basis of his experience as office bearer of the Association whose members were dealing with scrap. He has no technical qualification to give such an opinion. He was President of the Small Wire Drawers Association. The members of such Association are manufacturers of wire and not traders engaged in the sale or purchase of scrap. She also mentioned that the scrap may generate from various goods which may be made in India or abroad. Further only 8 to 10 out of 267 bags were opened and it would be wrong to presume that all the 267 bags contained the same goods; that perhaps bags belonging to them were not opened at all. She also submitted that Raxaul is a big market for scrap items; scraps of Indian origin as well as of Nepali origin was sold there and the scrap may have arisen either from Nepalese goods or items which had been imported into Nepal, used for a number of years and then sold as scrap; that the prohibition would not be attracted for such goods as has been held by the Tribunal in Ram Prasad and Ors. v. Commissioner of Customs (P), Patna, vide Order Nos. A -680 -751/Cal/96, dated 9 -10 -1996.