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438 EXCISE LAW TIMES [ Vol. 372

q.29. All the five metal elements are usually found in naturally occurring
gold ore or gold concentrate?
Ans. Not always all these elements may or may not be present.
q.30. In “soil sample” various chemicals and compounds have been men-
tioned. Are these chemicals/compounds found in the soil associated with
the gold ore/concentrate?
Ans. The chemicals/compounds found in a soil depend upon the source
from where the soil is derived.
q.33 In this case, Au is reported as 79.73. If we apply the above formula
then it would be 19.135 carat. Is this right?
Ans. Yes.
q.34 On page-5 of your report in para-2 contain observations about colour
of gold nugget are recorded. Did you conduct any test like Spectrophotom-
eter, and did you use an equipment like spectrometer for colour?
Ans. No. It is only physical observation.”
6.2 Learned Counsel argued that the report of Shri George Mathew
cannot be relied on as Shri Mathew is not expert of gold. He relied on question
No. 5 of the cross-examination which indicates that Shri Mathew has research in
minerals and not in gold. We do not find any merit in the argument of the
Learned Counsel as the term ‘Mineral’ covers gold ores also. Gold is a metal and
gold ore is a mineral.
6.3 Learned Counsel also seeks to draw support from the fact that
chemical examination was not done personally by the Professor but by the tech-
nical Superintendent. It is not necessary for the Professor to do the actual lab
work by himself. He is only required to interpret the result of the tests done in
the labs. Thus, we do not find merit in the argument of the Learned Counsel to
do lab test personally and discredit the report in any manner.
6.4 Learned Counsel has produced evidence before the Professor which
indicate that gold content in native gold is 70% to 90% to which the professor has
agreed. This would indicate that the report of the Professor that “Native gold
usually contains more than 90% Au” is discredited. In the cross-examination he
has agreed that Au content in the native gold varies from 70% to 90%. The chem-
ical analysis of the sample showed gold content 79.93% thus, it falls within the
range in which the gold ore also falls. However, just because the sample contains
gold in 70% to 90% it does not become “ore”. If the same is produced in a work-
shop the same cannot be called an ‘Ore’ in terms of the HSN. Learned Counsel
also relied on to the question Nos. 24, 29 and 30 to the cross-examination but they
are not of much significance.
6.5 From the above, it is apparent that there is no minimum or maxi-
mum percentage specified for gold content in gold ore. Different literature may
suggest different values, however, this fact has no significance in the present
proceedings as term ‘Ore’ is defined in the tariff itself. The said definition does
not contain any maximum or minimum value of metal or non-metal. Learned
Counsel further raised the issue regarding use of word ‘usually’ at various places
in the report of Professor at IIT, Bombay. It needs to be appreciated that ‘Ore’ is
naturally occurring substance and therefore cannot be any specific parameter for
‘Ore’. The composition of ore and contents of various materials in gold ore may
vary from place to place and content to content. Therefore, the term ‘usually’ ap-
pearing in the report of the Professor of IIT is not incorrect and we need to ap-
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