Custom, Excise & Service Tax Tribunal
Cc, New Delhi vs M/S S.M. Exports on 19 April, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 19.4.2012
Custom Appeal No. 559 of 2008
[Arising out of the Order-in-Appeal No. CC(A)/Cus/ICD/D-II/149/08 dated 24.4.2008 passed by the Commissioner of Customs (Appeals), New Delhi]
For Approval & Signature :
Hobble Ms. Archana Wadhwa, Member (Judicial)
Honble Shri Mathew John, Member (Technical)
1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? Yes
2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No
3. Whether their Whether their Lordships wish to see the fair copy of the order? Seen
4. Whether order is to be circulated to the Department Authorities? No
CC, New Delhi Appellant
Vs.
M/s S.M. Exports Respondent
Appearance:
Appeared for Appellant : Shri K.K. Jaiswal, A.R.
Appeared for Respondent : Shri J.P. Kaushik, Advocate
CORAM: Honble Ms. Archana Wadhwa, Member (Judicial)
Honble Shri Mathew John, Member (Technical)
Order No.dated.
Per Mathew John :
The Respondent filed two Shipping Bills 1426317 and 1426319 dated 20-10-04 for export of Automobile Spare Parts. On examination of the goods the goods were seen to be carrying markings like suitable for Mercedes Benz and SM products Mercedes Benz. Mercedes Benz is a trade name of goods produced by Daimler Chrysler AG, Germany. Revenue was of the view that the goods were prohibited for export in view of,-
(i) Notification 135/60-Cus dated 31-12-60 issued under section 11 of the Customs Act read with provisions under Section 117 of the Trade and Merchandise Act and SO 1272 issued under the said section and
(ii) Notification 1/64Cus dated 18-01-64 issued under section 11 of the Customs Act. So the goods were seized and Show Cause Notice issued proposing its confiscation, denial of DEPB benefit of Rs. 1,72,569.91 and denial of drawback of Rs. 33,483.37.
2. The adjudicating authority dropped the proposals for the reason that SO 1272 issued under section 117 of Trade and Merchandise Act makes it clear that the said notification does not apply to goods meant for exports and also for the reason that Notification 1/64-Cus applies only to import of goods and not export of goods.
3. Aggrieved by the order of the adjudicating authority Revenue filed an appeal with Commissioner (Appeal). The Commissioner (Appeal) upheld the order of the adjudicating authority. Aggrieved by the order of Commissioner (Appeal) Revenue has filed this appeal before the Tribunal.
4. Revenue submits that the goods were bearing brand name of Daimler Chrysler. It is also argued that exemption in clause 5 of SO 1272 applies when goods are manufactured for export only. The Respondent was a trader. So it cannot be concluded that goods were manufactured for export only. Revenue also relies on the prohibition in Notification 01/64-Cus. It is argued that since the exporter had not given true declaration as required under section 50(2) of the Customs Act the goods were prohibited for exports. Revenue argues that the Commissioner (Appeal) has misinterpreted and twisted the laid down provisions of notification 135/60 dated 31-12-60 read with Notfn. 1/64 dated 18-01-64.
5. The Counsel for Respondents submits that the markings on Back light were to the effect that the goods were suitable for Mercedes Benz. In the case of Brass Bush the indication was SM products Mercedes Benz. There was no indication to the effect that the goods were manufactured by the owner of the trade mark Mercedes Benz. The goods were meant for export to Nigeria. The Counsel further argues that Notification 1/64-Cus as also SO 1272 dated 28-04-1962 issued under section 117 of the Trade and Merchandize Act do not apply to goods meant for export and thus there was no prohibition on export of the impugned goods.
6. We have heard arguments on both sides. What we find is that the records do not show that the goods were indicating any wrong Trade Mark or Trade Name because there was no indication to the effect that the goods were manufactured by Daimler Chrysler, though there was a indication to the effect that goods were suitable for Mercedes Benz. Further Notification 1/64-Cus dated 18-01-64 prohibits only import of goods with false Trade Mark and not export of such goods. So reliance on this notification is misplaced.
7. We also find that SO 1272 dated 28-04-1962 deals with two categories of goods specified in Part-I and Part-II of the Schedule to the SO. It may be seen that the restrictions are for goods specified in clause 1 and clause 2 of the notification as under:
1. Requirements in respect of goods imported from abroad specified in column (2) of Part I of the Schedule
2. Requirements in respect of goods produced in India or imported or otherwise processed in India or assembled in India with wholly or partly foreign parts and falling within column (2) of Part II of the Schedule.
8. Further in clause 5 of the Notification specifies as under:
5 Exemptions. The following classes of goods are exempt from the operation of this notification:
(a)---
--
(f) goods of all kinds made or manufactured or produced in India solely for export.
9. We are of the view that the provisions of the SO 1272 did not apply to the impugned goods because there is nothing coming on record to show that the goods were manufactured with wholly or partly foreign parts. The Revenue has not produced any evidence to support their argument that the exemption in clause 5 will not apply. The lower authorities have accepted this argument. Now the only argument given is that the appellant is a trader. No other prohibition has been placed before us that would prohibit the exports of the impugned goods. Therefore we do not find any reason to interfere with the orders of the lower authority.
10. So the appeal filed by Revenue is rejected.
(Pronounced in Court) (Archana Wadhwa) Member (Judicial) (Mathew John) Member (Technical)