Customs, Excise and Gold Tribunal - Mumbai
Accra Pac (India) Pvt. Ltd. vs Commissioner Of Customs on 2 May, 2006
Equivalent citations: 2006(108)ECC525, 2006ECR525(TRI.-MUMBAI)
ORDER K.K. Agarwal, Member (T)
1. The appellants in this case have imported 10240 pieces of bottles and 10608 pieces of caps for clearance of which they filed a bill of entry. These bottles and caps were required to be used for packing of cosmetic under the trade name "aviance". They were issued a show cause notice stating that the subject goods were liable to confiscation in as much as they have not followed the conditions prescribed under Notification No. 1/64-Cus dated 18.1.1964 which prescribes that "goods made or produced beyond the limits of India, and having applied thereto any name or trade mark being or purporting to be the name or trade mark of any person who is a manufacturer, dealer or trader in India unless.
(a) The name of trade mark is as to every application thereof, accompanied by a definite indication of the goods having been made or produced in a place beyond the limits of India; and
(b) The country in which that place is situated is indicated in letters as large and conspicuous as any letter in the name or trade mark in the English language."
2. It was stated in the show cause notice that though the bottles have printed on them, a trade name/mark registered in India "aviance" but the country of origin has not been indicated on them. Accordingly, the goods were prohibited for import in terms of Notification No. 1/64 Cus, and on this count the goods are liable to confiscation under Section 111(d).
3. The other ground on which the goods were sought to be confiscated was these bottles were consumer goods as per ITC (HS) prevalent therein requiring a specific licence which was not produced.
4. The learned advocate for the appellants submits that it is admitted that the bottle had the trade name "aviance" on it and the only violation of Notification 1/64 was that the country origin was not mentioned on the bottles. In this regard, it was submitted that condition No. V of Notification 1/64 was subsequently deleted by Notification 61/2000 and the Tribunal in the case of Rochi Ram & Sons v. Commissioner of Central Excise, Jaipur 2004 (166) E.L.T. 203 (Tri.-Del.) held that amendment made by Notification No. 61/2000-Cus. was merely clarificatory and retrospective in effect & that requirement of mentioning the country of origin was not mandatory. Accordingly, it was submitted that there was no violation of the provisions of Notification No. 1/64.
5. As regards the allegation that bottles in question were consumer goods, it was submitted that consumer goods means goods which directly satisfy the need of the consumer. In the present case the bottles which bear the trade mark of "aviance" are of no use to consumer. It was only the cosmetic which is packed in this bottles that it becomes a item of consumption and therefore the bottles by themselves cannot be considered as items of consumer goods. Attention was also invited to the decision of the CEGAT in the case of Commr. of Cus., Nhava Sheva v. Dujodwala Resins & Terpenes Ltd. 1999 (108) E.L.T. (Tribunal) wherein it was held that good imported not to be considered as consumer goods when used in industry even if capable of being used as consumer goods. Attention in particular was drawn to Para 6 of this decision which for the sake of convenience is reproduced below:
6. As far as the instant case is concerned in our view, the judgment of the Tribunal in Sullur Tea Deposts case (supra) very relevant. In the said case at paragraph 5 the Tribunal has held that the note of the Addl. Collector dated 13-11-1993 would appear to indicate that when an item is used as a raw material manufacture of certain other goods could not be considered as consumer goods. We feel that the observation of the Addl. Collector has reflected in the Tribunals judgment is very relevant, in the context of deciding this particular case. In this case as mentioned earlier, the Collector (Appeals) in paragraph 7 has specifically found that the respondents were using the imported camphor as a plasticizer and not for any other purposes. And this could not be denied by the department. Once a particular material has been utilized for the purpose of manufacturing it cannot be stated that the imported goods could have been sold for some other purposes. When a material is used for purpose of industrial as well as capable for use as other purpose viz. a consumer goods, in our view do not come within the category of consumer goods. Because a doubt should always he in favour of the importer inasmuch as he is using it for purposes of manufacture of his final product viz. synthetic resin. We are, therefore, of the view that the instant impugned order should be upheld on the basis of the evidence found even though some of the observations made by the Collector (Appeals) viz. packing may not be correct. We, therefore, dismiss the appeal of the department
6. In view of the above submission, it was submitted that in the present case the bottles are used for filling of cosmetics and this is to be considered as industrial use. Therefore even if bottles by themselves are capable of being used as consumer goods, they cannot be considered as consumer goods.
7. The learned S.D.R. reiterated the submissions made by the Commissioner (Appeals) in his finding & stated that the condition regarding mentioning of the country of origin was mandatory and any amendment to the notification can have only prospective effect and no retrospective effect. Similarly bottles are capable of use directly by the consumer so as to satisfy there needs and therefore they have to be taken as item of consumer goods.
8. I have considered submissions. I find that so far as the condition of Notification 1/64 is concerned the matter is fully covered by the Tribunal in the case of Rochi Ram (cited supra) wherein it has been held that deleting condition No. (v) relating to condition regarding mentioning of country of origin was merely clarificatory and amendment has retrospective effect. In view of this it is held that there has been no violation of condition of Notification No. 1/64.
9. As regards bottles being consumer goods, I find the bottle bearing the trade mark of "aviance" by themselves does not satisfy the need of consumer as it is only bottle full of cosmetics which go in the consumption. The facts of the appellants case are therefore, squarely covered by the Tribunal decision in the case of Dujodwala Resins (cited supra). In view of same, appeal is allowed and the order of the lower authorities is set aside.
(Dictated in Court)