Sukumar Mukhopadhyay: Expert opinion: How relevant it is

Let me begin by telling a true story. As Principal Collector of Customs, Delhi (as it was  known then) I had to adjudicate a case in early nineties. Normally  there is no power of adjudication by the Principal Collector but the High Court directed that it should be done by the PC.

So I began hearing which went on for nine long days. On the ninth day appeared a luminary of a lawyer who argued very well and he tried to clinch his argument by producing three expert opinions to me. I could see that he had not seen them before because I could very well visualise the embarrassment in his countenance when I pointed out to him that the wordings in all the three opinions were identical. Even the punctuation marks were same. The three experts had obviously signed the same opinion written in advance. This not only established the malafide of the assessee but also the experts who could write such motivated opinion. 

But the luminary  of a lawyer would not have been a luminary had he not got tremendous wit and presence of mind. He told me promptly, “Your Honour, I have the given the opinions as they are and you may take any view you like.” Of course , I rejected the opinions as not worth the paper written upon and based my adjudication on other evidence.

Another true story comes to my mind. When I joined as the Collector of Customs Bombay in mid -eighties, I found that there was a prevalent practice of taking expert opinion from the market. It is not the same thing as ascertaining how the goods are known in the market. That sort of market inquiry is relevant in limited circumstances such as when we have to find out if something is known a glassin paper or grease-proof paper or vegetable parchment  paper, etc. I am referring to more substantial controversies where regular opinion is necessary. One must understand the difference between where market parlance is relevant and where not. If it is a scientific product or if there is no market at all since the items are not usually imported, taking market opinion can be dangerous. There is also an inherent danger in accepting an expert opinion. It is often that the giver of the expert opinion is known to the importer or the assessee. If an opinion is taken from an expert of the opposite business group, one may get a completely different opinion. And if you take an expert opinion, you have to offer the expert for cross examination. That delays the adjudication. And also it becomes time consuming which makes it very difficult for a Collector who is very busy usually and more so in Bombay. So one of the first things that I did in Bombay was to discontinue taking expert opinion unless it was unavoidable. It is better to depend on technical literature. When a manufacturer’s literature shows that some thing is a printer, there is no point in taking an expert opinion to find out if it is a plotter. Therefore, it is a good policy to depend on expert opinion as less as possible. I did consult some experts all right but that was to form my own opinion and not for relying on them in the adjudication. An adjudication which depends on no expert opinion has a much better chance of surviving the onslaughts in the appeal stages than one which depends on expert opinion. 

It is also found often that opinions given by two people are quite different and opposite to each other. Therefore, the conclusion is clear that the expert opinion is only worth the substance that is contained in such opinion. 

The relevance of expert opinion in classification is secondary. It is not primary like statutory description, market parlance or scientific literature. Its importance comes in determining what exactly is the identity of the goods which in turn determines the classification of goods taking the statutory definition, market parlance or scientific definition. To make the point clear, expert opinion will not be admissible if it says that it is classifiable under Chapter Heading 27 or 29. But it certainly can say what type of chemical it is so that it becomes now possible for the assessing authority to place it under Chapter Heading 27 or 29.

Now is the question whether expert opinion is acceptable and to what extent. There is always the possibility of a bias in an opinion produced by the importers and manufacturers before Revenue. For, they will never produce before Revenue any adverse opinion given by the experts.

There are many judicial decision on the importance of expert opinion and the  following amongst them are pertinent.

[Panama Chemical Works vs U.O.I. - 1992 (62) E.L.T. 241 (M.P.) ]

In this case under the Central Excise Tariff Act and Drugs and Cosmetics Act, 1940, an expert opinion was given by the Director Food and Drugs which was in favour of the manufacturers. Revenue rejected the opinion without giving any cogent or scientific reason or a contrary opinion of an expert. The High Court held that Revenue cannot reject it.

[Novopan India vs CCE, Hyderabad - 1994 (73) E.L.T. 769 (S.C.) ]

The Supreme Court, in this Central Excise case, ruled that opinions of experts who are associated with the assessee and whose opinion is not backed by any technical

authority or literature on the subject are not reliable.

Expert opinion is subject to scrutiny

[Government of India  vs. Hyderabad Asbestos Cement Products Ltd. - 2000(125)ELT267(AP)].

In this Central Excise case, the issue was whether asbestos cement pressure pipes were classifiable under Class-III of the Indian Standard specification IS: 1592-1960 of the Indian Standard Institution. If it was not, it would make a difference to the rate of duty because of an exemption notification.  The assessee produced an expert opinion in the form of a certificate from National Test House Alipur, Calcutta. The court, however, found that the crucial test was water tightness test which was not done. The court held that it is for revenue which seeks to collect higher duty to conclusively establish that the pipes in question fall under Class-III alone and not under any other class before they can claim to impose higher duty.  So the court observed that “while the opinion of the expert in matters like this carry great weight, the court is not precluded from considering whether the certificate is issued by the expert after subjecting the material to the test envisaged by the specifications laid down by the Indian Standard Institute”.

Conclusion

The substance of the judgments is that the opinion given should have substantive value in the shape of verifiable facts which can be verified and are capable of being falsified. The opinion should contain the relevant data and also the logic for coming to a conclusion. Such opinion should be relevant for the purpose of identification of goods and classification in the final analysis.  The judgment referred to in the case of  Hyderabad Asbestos Cement (supra) underline the most crucial point that expert opinions are subject to scrutiny.

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