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3. TOLU-2366794 99.00] 95.618%

4. TPHU-6387130 94.39]

5. EOLU-2206180 96.36] The contention of the department was that since the percentage of copper average 95.618% in the sample tested, therefore the goods were 'Birch' variety inasmuch as ISRI Code clearly spelt out that the Birch No. 2 Copper Wire should consist of miscellaneous, unalloyed coper wire having nominal 96% (minimum 94%). As against this, ld. Counsel submitted that the test result conveyed by the National physical Laboratory, New Delhi clearly showed that the percentage contents of copper wire was arrived by them after cleaning the copper wire. Ld. Counsel submitted that it was cleaned copper wire which was subjected to the test and the varnish and other material which was though contained nut was not taken into consideration and, therefore the test results were not applicable. Ld. Counsel also submitted that ISRI Code clearly laid down that "It should be free of the following: excessively leaded, tinned, soldered copper wire; brass and bronze wire; excessive oiled content, iron and non-metallic; copper wire from burning, containing insulation; hair wire; burnt wire which is brittle; and should be reasonably free of ash. Hydraulically briquetted copper subject to agreement." Ld.Counsel submitted that there is no finding that wires subjected to the test by National physical Laboratory on the basis of samples sent by the Customs authorities were free from those(SIC). The deparment's argument of this contention of the appellants was that predominately it was copper wire and, therefore it is covered by ISRI Code for 'Birch' variety.

7. Ld. DR also submitted that normally it is the trade opinion which is accepted by the importer as well as the department. He submitted that in this case the trade opinion was taken which confirmed that the goods imported were of 'Birch' variety according to ISRI Code.

8. WE have carefully considered these submissions. We note that in the instant case no doubt the trade opinion was taken but the fact remains that for qualifying for 'Birch' variety of ISRI Code the goods should be free from a number of items and there was no finding in that regard. We also note that in the instant case the goods are still in the custody of the Customs authorities and there is since some doubt about the goods pertaining to one variety or the other. Therefore, we consider it to be a fit case for remand. The case is remanded to the Commissioner concerned to examine the entire evidence again to determine correctly the variety to which they belong after giving the appellants an opportunity to prove their contention by producing additional evidence if necessary and pass appropriate orders in accordance with law.