TMI Blog2006 (4) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... h no evidence whatsoever was led by the Tribunal. The goods, imported in the form of the sheets but rolled up for loading and transportation purposes, would not convert them into 'films' or 'sheetings' thereby denying the assessee the benefit of the exemption Notification. In favour of assessee. - 1520 of 2001 - - - Dated:- 10-4-2006 - Ashok Bhan and Lokeshwar Singh Panta, JJ. [Judgment per : Ashok Bhan, J.]. - The point involved in the present appeal is :- Whether the expression "insoles, midsoles and sheets thereof" used in the exemption Notification No. 20 of 1999 issued under the Customs Act, 1962 (for short "the Act") can be interpreted to mean that the sheets rolled up for the convenience of loading and transport, would disentitle the assessee from the benefit of the Notification? FACTS 2.Appellant is a partnership firm based in New Delhi dealing in the business, inter alia, of leather footwear materials and accessories. One of the items regularly imported by the appellant is "PU coated leather fabrics" which are extensively used in the leather footwear industry as "'insoles and midsoles". This item was covered originally by Notification No. 224/85 and thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Customs was cited with the approval by Eastern Bench of the Tribunal reported in Mod Apparel Exports v. CC, Calcutta [1996 (14) RLT 174 (CEGAT)]. This order of the Tribunal was upheld by the High Court of Calcutta in C.A. No. 1717 of 1995 - Tirupati Garments another v. Union of India others dated 11-6-1996. Thereafter, the appellant have been clearing several consignments of the same material and the department had permitted the clearance following the order of Commissioner which had become final since no appeal, review or revision had been preferred against it. 4.In February, 1996 another consignment imported by the appellant and cleared by the Customs Authorities at Chennai was seized by the New Delhi Preventive Wing when the goods were being unloaded at the appellant's Karol Bagh godown. The said seizure resulted in a fresh adjudication in Chennai wherein the Commissioner passed an order holding that the appellant had failed to establish actual use in leather industry and consequently denied the benefit of the Notification No. 45/94. This order was set aside and the case was remitted back for a fresh decision. The appellant participated in the fresh adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th regard to the items which have been cut to size and not those in rolled form. In the present case also, admittedly, appellants have imported the material in length of 50 mtrs on the requirement of customers. They are themselves carrying out the activity of cutting to size before it is sold to customers for the purpose of manufacture of Insoles and Midsoles. The term "sheets thereof" should refer to the words 'which should have been cut to size' for the purpose of manufacture of Insoles and Mid Soles." The words "thereof" has to be read along with the terms "In-soles and Mid soles". Where sheets has been imported in cut form and being utilized solely for the purpose of manufacture of in-soles and Mid soles, they go along with it in terms of the entire reading of the terms of the notification." 6.Learned Counsel for the appellant strenuously contended that the impugned goods had been imported by the appellant in the form of "sheets" but for loading convenience; the sheets, being 50 metres long and the material being highly flexible, had been rolled up for loading, which did not detract from the facts that the goods were sheets in rolls. The Notification merely required the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1976. Subsequently, the assessee made three applications for the refund of the amount of the additional duty of customs paid by it. The claim for refund was based on the terms of a Notification of exemption issued under Section 25(1) of the Customs Act. Under Notification No. 228/76 dated 2-8-1976, an exemption from the customs duty payable under Section 3 of the Customs Tariff Act was granted in respect of "articles made of plastics, all sorts, but excluding those specified in the table annexed thereto and falling within Chapter 39 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975)". The annexed table excepted the following items from the purview of the exemption : "Tubes, rods, sheets, foils, sticks, other rectangular or profile shapes, whether laminated or not, and whether rigid or flexible including tubings and polyvinyl chloride sheets." 10.The case of the department was that the goods were "sheets" or "foils" or "other rectangular or profile shapes" and hence liable to duty. On the other hand the assessee's case was that they were "films", a specie of plastic articles different from any mentioned in the table annexed. It was alternatively contended th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or footwear industry" requires the packing to be in the form of rolls so as to ensure safe transportation. Clause 5.1 of Indian Standard Institution specification for PVC coated fabrics for footwear industry IS : 8699-1977 provides: Packing"5.1 - The material shall be securely packed in the form of a roll so as to ensure safe transportation." 14.Contention of the assessee that the goods had been imported in the form of sheets being 50 metres long were rolled up as specified by the ISI standards for loading and safe transportation has gone unrebutted. The burden was on the revenue to prove that the subject goods were not "sheets" for which no evidence whatsoever was led by the revenue. The burden of proof as to whether the item in question is taxable in the manner claimed by the revenue is on the revenue. Mere assertion in that regard is of no use. It has repeatedly been held by this Court that it is for the taxing authority to lay evidence in that behalf. [See Union of India and Others v. Garware Nylons Ltd. Others - 1996 (10) SCC 413 - Para 15 and Hindustan Ferodo Ltd. v. Collector of Central Excise, Bombay - 1997 (2) SCC 677 - Para 4). The burden was on the revenue to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
