Customs, Excise and Gold Tribunal - Delhi
Allibhoy Mohamed vs Collector Of Customs on 4 January, 1983
Equivalent citations: 1983ECR258D(TRI.-DELHI), 1983(12)ELT385(TRI-DEL)
ORDER
1. The question involved in this appeal is whether Stamping Foils were covered by entry No. 12 "Buckles and other embellishments for foot wears" occurring in Notification No. 29/69-Cus., so as to attract the concessional rate of duty provided for in this Notification.
2. The case was heard on 4-1-1983. Shri S D. Nankani, arguing for the appellants, stated at the outset that though in their written appeal the appellants had made a grievance of denial of personal hearing before the Appellate Collector, they did not wish to press for the same and they wanted the Tribunal to decide the matter on merits. He then presented samples of Stamping Foils and a few fancy ladies' chappals to explain the nature of the article imported and the manner of its application to decorate foot wear. He referred to the following portion from the order of the Appellate Collector of Customs, Bombay bearing No. Section 49-1204, 1076, 1077 & 1O78/8OR dt. 18-8-80 :-
"Stamping foil is a foil of about say 6" width in a running length and is supplied in rolls. In some of the goods before me the running length in individual rolls is as much as 120 metres. Similarly the width varies from 150 mm to as much as 640 mm (say 6" to about 26"). These stamping foils are used for impressing or impregnating a decorative design on so many goods including of course leather manufactures and leather foot wear. The stamping foil is placed on the piece to be decorated. Then a die made out exactly to meet the required design to be impressed will press on the stamping foil. It could be only pressure or heat or both. Only that part of the stamping foil on which the die of the individual design presses becomes one with the material to be embossed or decorated. The design alone will get cut out or separated from that continuous sheet of the stamping foil. The remaining part of the stamping foil is a remnant waste. (It could no doubt have some use for recycling the matarial). Thus the stamping foil is used for decorating/ornamentirg/embelli-shing different commodities including leather manufactures. As far as these facts are concerned, there is no dispute between the appellants and the department".
3. Shri Nankani then referred to the Import Trade Control Policy (For Registered Exporters), Volume II, for the period April 1976 to March 1977, to show that import of Stamping Foils was allowed against export of foot wear, vide item D. 2-1 of the shopping list contained in the said Policy. He stated further that the appellants were actual users of Stamping Foils and they had imported the impugned consignment against an Actual User Licence, that there was no condition either in the licence or in the relevant entry of Notification No. 29/79-Cus., that Stamping Foils must be used for foot wear only, that the goods were capable of being used on foot wear and the fact that they were commonly so used was not disputed by the Department, that the whole object of using Stamping Foils was to impart beauty, decoration or ornamentation to the foot wear and that for this reason Stamping Foils came in the category of "embellishments" as per the meaning given to this expression in the Oxford English Dictionary as well as the Webster Universal Dictionary. Finally, Shri Nankani argued that the principle of Ejusdem Generis was not applicable to entry "Buckles and other embellishment for foot wear" since "Buckles" was not a genus but a specific item (vide, AIR 72 SC 1863).
4. On behalf of the Department, Shri Chatterjee did not dispute that Stamping Foils were used for imparting beauty, adornment and ornamentation to foot wear. He stated that the objection of the Department was that Stamping Foils, in the form imported, were not embellishments in themselves but were only an aid or a base to transfer embellishment on to the article stamped.
5. We have given our earnest consideration to the matter. It is by now well settled that words and expressions in taxing statutes, unless defined in the statute itself, have to be construed in the sense in which the persons dealing with them understand, i.e., as per the trade understanding and usuage. We find that thougft'the expression "embellishments" has not been defined either in the Customs Tariff or in the exemption Notification No 29/79-Cus, it has acquired a definite trade understanding. The records show that at the original stage the Assistant Collector wanted the appellants to produce a certificate from the Export Promotion Council for Finished Leather and Leather Manufactures. Later, the appellants produced the said certificate bearing No. BRO/Certificate/8(V81/ 16988 dated 27-2-1980 which gives a list of 14 articles used in manufacture of leather foot wear and which are considered as embellishments by the said Council. Stamping Foils as well as Buckles have been listed as two of these articles by the said Council. It may be mentioned here that the said Export Promotion Council is a semi-Government organisation. We find further that the Council's certificate has a sanction from the Government itself in the Import Trade Control Policy books which, we understand, are prepared in consultation with Government's technical authorities like the Director General of Technical Development, the Textile Commissioner, etc. We find that the Policy for April 1976March 1977, Volume II, gives a list of articles considered as "Trimmings and Embellishments" on page 211, "Stamping Foils" is listed as one of such articles at serial number (xxiii) in this list. Again the Policy Book for the next year (April 1977March 1978), on page 35, lists 17 articles allowed to be imported against the description "Trimmings and Embellishments" and "Stamping Foils" is one of them listed at serial number (xv) of this list. "Buckles" too are included in the same list. In the light of this evidence, there is hardly any doubt that persons dealing with trimmings and embellishments in India consider Stamping Foils as an article of embellishment.
6. The objection of the Department only is to the running length form in which the Stamping Foils have been imported and their objection is based solely on the Dictionary meaning of "embellishment". We find this objection misconceived. The question here is not whether Stamping Foils are parts and components of foot wear but whether they are embellishment for foot wear. The nature of the article with which we are concerned here, namely, Stamping Foils, is such that importing it in any other form would either be impractical or would be so prohibitively expensive as to it impractical. In any case, we find that the concerned trade as well as the Government's own trade control authorities regard Stamping Foils even in the running length form as embellishments.
7. We, therefore, hold that as per the trade understanding and usuage, Stamping Foils are embellishments and, therefore, entitled to the concessional rate of duty provided for in Notification No. 29/79-Cus. Accordingly, we allow this appeal with consequential relief to the appellants.