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10.3 It is global phenomena that waste paper bales usually contain extraneous material/contaminants to some extent as is recognised by two publications as under :-

(a) European List of Standard Grades of Recovered Paper and Paper Boards  (Ref. Pages 41, 42, Volume 2 of PB)

(b) Publication of Technical Association of Pulp and Paper Industry, Atlanta  (Ref. Pages 43/Volume 2 of PB) 10.4 Ld. Senior counsel submitted that the imports relate to the year 2002-04 and past clearances were relating to 52 Bills of Entry covering the period prior to 3.9.2002 to 14.10.2004. Details of all the Bills of Entry, content thereof, understanding of the parties, global practice, classification of goods declared, interpretation of the expressions used in the notification and the relevancy of the classification being known to the department, they should not have issued any show cause notice on 29.3.2005. The appellant neither made any misdeclaration of imports nor any suppression of facts was made deliberately for which section 28 of the Customs Act, 1962 is not invocable. There was no intention to make evasion. Revenue made allegation that appellant had made a suppression. But burden of proof by Revenue was not discharged to bring out nature thereof. So merely alleging that the lot contained other than paper waste, that does not satisfy the law declared by the Apex Court. It is the necessity of law that suppression should have been wilfully done with the intention to cause evasion which are essential ingredients of section 28 of Customs Act, 1962. It was not for the appellant to establish veracity of the allegation but the person who alleges has to specify whether the appellant acted malafide. Nothing is apparent from adjudication as to malafide of appellant. Therefore, Revenue failed in its allegation.

19. Relying on the decision in the case of Central Board of Secondary Education Vs Vineeta Mahajan (Ms.) and Another  (1994) 1 SCC 6, Revenue submits that when unfair means adopted in the examination was held to be violation of relevant rules therein, the same should be construed in Customs Act so as to conclude that in respect of past and live consignments the appellant has violated import norms and indulged in misdeclaration, to invite penal consequence of law.

REJOINDER OF APPELLANT :

20. In rejoinder, on behalf of the appellant, it was submitted that so far as Bill of Entry No.636370 dt. 31.5.2004 is concerned, the appellant well explained to the customs authorities on 30.9.2004 that because of lying of goods for a long time, and demurrage having been suffered it shall clear the goods without prejudice to its right to contest the same if any proceedings is initiated in future in this respect. Therefore, when clearance was made under protest, that absolves the appellant from the liability in respect of the imports since those were not deliberately misdeclared imports. The appellant had no intention to make any misdeclaration for the reason that any shortage in the imported quantity shall result in loss to it and because of other waste, it cannot manufacture paper out of that. Therefore, no person will cause prejudice to himself knowingly. Accordingly, entire contention of Revenue fails on this ground.

b) There is no dispute that Chapter 47 applies to the imports. Even appellant did not dispute the classification of the goods if otherwise classifiable in other entries in case Tribunal finds that its imports are appropriately classifiable for duty.

FINDINGS AND CONCLUSION OF TRIBUNAL

21. We have carefully considered the submissions of both sides and examined all the relevant documents on which reliance was placed by both sides and available on record. The issue in the present appeal relates to import of goods misdeclared as "waste paper" containing plastic waste/scrap, metal scrap and cloth scrap (rags) and demand of duty as well as penalty on such goods. So also confiscation of consignment was done imposing redemption fine. The adjudicating authority in his impugned order has discussed the issue at length and confirmed the duty on the following goods :-

The ratio of the above decision is squarely applicable to the facts of this case as it established beyond doubt that appellants had imported and misdeclared 2468.057 MTs of Plastic Waste/Scrap, 360.35 MTs of Metallic Waste and 103.280 MTs of Cloth Waste (Rags) and the said goods were cleared as waste paper and to that extent the appellants failed to comply the mandatory condition of the notification. Therefore, by respectfully following the above Apex Court's decision, we are of the considered view that concessional rate of duty availed by the appellants under Notification No.21/2002 as well as full exemption availed under 203/92 Cus. is not eligible on the quantity of plastic scrap, metallic scrap and cloth scrap (rags) and these goods are chargeable to appropriate Customs Duty and the duty demand of Rs. 1,06,10,668/- is confirmed. Adjudication to that extent is upheld.