TMI Blog1999 (5) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. It was alleged that the declaration made on the Bill of Entry was wrong, making the goods liable for confiscation under Section 111(m) of the Customs Act. The show cause notice proposed reclassification of the goods, confiscation thereof and imposition of penalty. The importers then filed a reply and also referred to a clarifications from the DGFT. The joint Director General of Foreign Trade speaking for the DGFT vide his letter dated 25-8-1998 addressed to the Commissioner of Customs, referred to the dispute between the importer and the Customs House. Paragraphs 2 and 3 of the letter read as under : 2. The matter has been examined in the Special Advance Licence Committee on the basis of sample produced. The Committee observed that what is allowed for import is PVC Leather Cloth and just by printing and embossing thereon and importing in cut lengths, the basic character of PVC Leather Cloth does not change. Moreover, just because import has been made in cut length and imported material would be converted into footwear components, it cannot be treated as footwear components. 3. In view of this you are advised to take appropriate action. Specimen of sample (2 pieces) are s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a b). (b) The goods are covered by the Advance licence No. 5000013, dated 8-6-1995. Admittedly this line seems to give a wrong impression but then we see the point in the rejoinder made by Shri Chatterjee that if the Commissioner was to accept the fact that the goods were covered by the Advance Licence the very proceedings would much on this argument. 3. Shri Doiphode also claimed quoting from the show cause notice that it required cutting to make the goods clearly distinguishable as shoe uppers. In this respect he refers to the following sentence in the show cause notice : Necessary embossing and printing is complete and it requires only cutting for them to be clearly distinguishable as shoe uppers. We find that the very next line is as under : Though uncut, they have already acquired the essential characteristics of shoe upper and hence they have lost their identity as PVC leather cloth. We therefore, do not wish to dwell too long on this point. 4. During the proceedings we saw the samples produced by Shri Doiphode and also samples in possession of Shri Chatterjee. The sample is about 20" x 14". It is a PVC sheet bonded with textile fabric. The PVC sheet is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. We are, therefore, not very clear about the characteristics of PVC cloth, which was before the Tribunal in that case. It is correct that a number of processes can be undertaken on a product in spite of which the identity of the product would remain unchanged. Thus, grey fabric, even if bleached printed, dyed or subjected to any other such processes continues to qualify as fabric. There, however, comes a process which changes the identity of the basic product. In Central Excise terminology such process of material importance is termed as a process of manufacture and becomes the turning point in changing the identity and resultantly the tariff classification of a particular commodity. In the sample before us it is not an act of embossing for the purpose of creating an article or commodity with greater appeal to a buyer of PVC cloth. Embossing as per Fairchild Dictionary of Textiles, 6th Edition is as under : Embossing : A calendering process which produces a raised design or pattern in relief. There are several ways of embossing. In certain cases the design is created by action of hot rollers. Velvet is embossed by tearing the pile at different levels. Different patterns c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent to importation. We find that the present goods do not derive any benefit from the judgement. The goods before us are in the stage where they are clearly recognisable as parts of shoe uppers. We have also seen the judgment of Supreme Court in the case of C.C.E., Hyderabad v. Bakelite Hylam Ltd. - 1997 (91) E.L.T. 13 on which reliance was placed by Shri Chatterjee. In the judgement the Supreme Court held that Industrial laminated sheets and glass epoxy laminated sheets could be considered as an electrical insulators, even when they had to undergo the processes of cutting and punching holes for fitment as insulators. Shri Chatterjee uses this judgment to state that even if the PVC shoe uppers are not cut into 3 parts, the identity of shoe uppers still exists. 11. On examination of the samples and the case law, we find that the Commissioner was correct in holding that the goods meritted classification under sub-heading 64.06.10. 12. We have taken cognisance of Mr. Doiphode s submissions that in interpreting the import policy, reliance cannot be placed on the law relating to classification. We also note the submission that as far as the import control policy is concerned, the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the import policy but is limited to verification of the material terms for import used in the notification. 14. We now come to the opinion given by Special Advance Licensing Committee extracted earlier, from the letter of the Joint DGFT. Shri Chatterjee here raised some doubt as to the identity of the samples which were shown to the committee and raised some doubt on the acceptability of the communication. We do not consider this objection seriously because the description in the opinion of the sample before us is not materially different. The issue is whether this opinion is directory or not where the Customs are considering the availability of the benefit of exemption notification. 15. Shri Doiphode cited Calcutta High Court judgment in the case of Sandip Agarwal v. C.C. - 1992 (62) E.L.T. 528. We have perused paragraph 29 of the judgement. The clarification obtained by Customs authorities from the office of the C.C.I. E, was not given importance by the High Court on the ground that it was signed by the DCCI E and it was not claimed to be on behalf of the C.C.I. E. The Court however, acknowledged that DCCI E was competent to give clarification on any provision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder a particular licence and accordingly assess the goods to duty so imported. Hence, wrong classification made by the lower authorities or other authority like Director General of Health Service do not bring out the distinction between two items. Accordingly, the clarification issued by the said authorities do not advance the case of the petitioner. It is also clear that the Government have taken public interest into consideration while issuing the notification under Section 25(1) of the Customs Act and the government has to protect the local manufacturer. Merely because the Government or some other authority had given relief in similar case to some other persons, on that basis, it is not open to the petitioner to claim the same relief when it is ultimately found that the earlier relief granted by them are incorrect. The respondent is justified in holding that the goods imported by the petitioner do not qualify for exemption from import duty under Entry 44 of the Exemption Notification. On examining the subject letter, we do not find it to be an opinion or a clarification by the DGFT but that it merely conveys the finding of a Committee established under the Policy. 17. We t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
