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TMI Blog1989 (7) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, issued to the importers/appellants herein calling upon them to explain as to why the goods should not be confiscated under Section 111(d) and 111(m) of the Customs Act, 1962 read with Import (Control) Order, 1955 and why penal action should not be taken against them. 1.2. In reply to the show cause notice the appellants herein contended that the goods imported by them are 100% polyester fabric as permitted by the advance licence. Regarding suitability of the material imported for making shirts, they submitted that the partner of M/s. Hemchand Bros., Dubai, had visited their office and had shown to them samples of the garments and had asked them as to whether they could supply the garments wanted by him. The appellants showed interest in the offer and asked the said partner of M/s. Hemchand Bros. to give his definite requirements. Subsequently, the appellants received letter dated 3-1-1984 from M/s. Hemchand Bros., Dubai stating that they had a confirmed requirement of 10,000 dozens shirts of 100% polyester shirtings heavy twill in the small, medium and large sizes in an approximate ratio 1: 3 : 2. They also sent the appellants a sample cutting of the cloth of which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. The appellants herein thereafter filed an appeal before the Tribunal (WRB) against the aforesaid conditions imposed by the learned adjudicating authority. The Tribunal (WRB) by its order No. 1193/86-WRB, dated 6-11-1986 [Kays International v. Collector of Customs -1987 (29) E.L.T. 547 (Tri.)] remanded the case to the Additional Collector for de novo adjudication in accordance with law. In giving the aforesaid direction, the Tribunal s observation in para 5 of the order are reproduced below :- .........................................TheAdditional Collector was however satisfied by being shown a sample of the safari shirts that shirts can be stitched from this cloth. Hence he accepted the licence. The Additional Collector has inter alia referred to the correspondence exchanged between him and the Export Commissioner. Shri Krishnamurthi has correctly made a grievance to the introduction of the extraneous grounds in the adjudication of the Additional Collector. The relevant observation of the Additional Collector seems to suggest that there was no contract between the appellants and their foreign buyer namely M/s. Hemchand Bros. as they could not produce such a contract be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He has categorically held, after examining the samples drawn from each of the consignments and having regard to the other facts and circumstances, that the goods are suiting and not shirting. He further observed that though the goods are covered by the general description column of the import licence, there is no doubt that when this description column was read with the conditions of manufacture and export of shirts the licence was invalid for the goods imported. The fabrics imported were suiting and not shirting and therefore, not suitable for making shirts; consequently he confiscated the consignment absolutely under Section 111(d) and also imposed a penalty of Rs. 100000/- under Section 112 of the Customs Act, 1962. He was also aware of the fact, as mentioned in the impugned order, that the Additional Collector of Customs in the original adjudication had given the importers an option to manufacture the goods inbond and export the same. Since, according to him, the importers did not avail this facility he felt convinced that they had no bona fide desire to fulfil their export obligation and had deliberately imported suitings/safari material for misutilising the same after cleara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e material is at once unjustified. He has, therefore, urged that the impugned order be set aside and appeal be allowed. 5. Learned SDR, on the other hand, appearing for the department has reiterated the findings of the Collector of Customs in the impugned order. On a query from the Bench about the scope of the remand in the Tribunal s order No. 1193/86-WRB, dated 6-11-1986 learned SDR has urged that in readjudication the matter was at large and the Collector was not bound to follow the observations of the earlier adjudicating authority, namely the Additional Collector of Customs. 6. We have carefully considered the pleas advanced on both sides. We find substantial force in the various pleas of the learned Advocate for the appellants. The direction for readjudication had been made specifically to the Additional Collector of Customs who had originally adjudicated the case. In the circumstances, we do not see any reason as to why the Collector of Customs took upon himself to readjudicate the case in the face of the specific directions of the order of the Tribunal. 6.1. From a reading of the Tribunal s order, as extracted above, it is also apparent that the cause for readjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny cases, he points out, the edges of the fabrics were having markings :- 100% polyester heavy twill dyed suiting. 58760 -made in Japan was indicated. From this he infers that the goods are suiting and not shirting. Suiting is obviously cloth for suit. The Collector has not discussed what is meant by suit . Neither any evidence of what the textile and garments trade and industry understand by the terms suit and shirt has been brought on record. Now, the word suit has been defined, inter alia, in Chambers 20th Century Dictionary as a number of things of the same kind or made to be used together as clothes . From this it is apparent that a suit does not necessarily mean a coat and a pant. It can be a kurta pyjama suit of the same material. It can be a lady s suit comprising salwar and kameez . It can as well be a suit of shirt and pant of the same material. The term suit in common parlance implies that both the upper and lower garments should be of the same material. Further, the term shirt has been defined in the said dictionary as a man s loose sleeved garment typically with fitted collar and cuff or a woman s blouse of similar form . It is apparent that a sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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