The media has widely reported a recent case where several highly qualified doctors, and heads of departments at that of several medical colleges gave identically worded opinions favouring the use of some drugs without clinical trial. Quite obviously the opinions were fake. This is not the first time that this has happened. At least in the case of Customs and Central Excise, this has happened before.
A luminary of a lawyer once appeared before me arguing a case. He placed three expert opinions before me to prove his point that the imported goods were not of prime quality. I could see that he had not seen the opinions 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 by somebody else. This not only established the mala fide of the assessee but also the experts who could write such false 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 given you 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.
In Customs there has been a practice of ascertaining market parlance which determines classification of goods. This market parlance is different from expert opinion. Market enquiry is relevant in limited circumstances such as when we have to find out if something is known as electrical insulation paper or vegetable parchment paper or grease proof paper or glassin paper etc. But expert opinion is taken from acknowledged experts who give their individual opinion and not a market opinion. There is, however, an inherent danger in accepting an expert opinion. It is not unoften 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 vice versa. Moreover an adjudication which depends on expert opinion is vulnerable because if the expert is cross-examined, he may not stick to what he had opined earlier. And cross-examination, if asked for by the assessee, must be allowed, as held by the Supreme Court in the case of Amkap Marketing P Ltd v Commissioner - 2012 (278) E.L.T. A143 (S.C.)
If it is an expert opinion, which is a mere assertion of certain theories of chemistry or physics and if it is corroborated by authentic literature or manufacturer's literature, it should be accepted, held the Supreme Court in the case of Commissioner of Customs, Calcutta vs G C Jain -2011 (269) E L T 307 (S.C.).
An opinion of an expert who is associated with the assessee and whose opinion is not backed by any technical authority or literature on the subject is not reliable, held the Supreme Court in and Central Excise case of Novopan India vs CCE, Hyderabad – 1994 (73)ELT769(SC).
Also Read
In the latest judgment on the subject, the Supreme Court has held in the case of Commissioner of Customs (Import), Mumbai vs Konkan Synthetic Fibres - 2012 (278) E L T 37 (S C), that Textile Commissioner was well conversant and expert in field of trade, whose opinion had to be given due importance, and could not be ignored. It is important to note that the Supreme Court has not held that the opinion must be accepted. It has only said that it should be given due importance. If an expert opinion is not corroborated by technical literature or by other facts, Revenue is free to give its own decision to either reject or accept the opinion.
Conclusion
The substance of all the judgments is that an expert opinion should have substantive value in the shape of verifiable facts which are capable of being falsified. The opinion should contain the relevant data and also the logic for coming to a conclusion. The most crucial point is that expert opinions are subject to scrutiny. And if they are identically worded, obviously they are false.
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