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TMI Blog1994 (5) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... nged the trade mark of another foreign manufacturer. A show cause notice had been issued to that effect and thereafter an order-in-original dated 30-6-1987 was passed imposing penalty of Rs. 10,000/- and in [lieu] liue of the confiscation, a redemption fine of Rs. 1. lakh was also imposed. The importer filed an appeal to the Tribunal and the Tribunal had reduced the fine and penalty. In the said order of confiscation and imposition of penalty, the ld. Collector had held that there is no dispute regarding the rate of duty, as the goods in question were exempted under the Notification No. 208/81. The department was, however, not being satisfied with conclusion of proceedings before the Tribunal, again initiated proceedings against the importer, by issue of another show cause notice. The receipt of this show cause notice is disputed by the appellants herein. The Assistant Collector Customs confirmed the duty under Section 28 of the Customs Act, 1962 by his order dated 13-8-1991 ex parte. In this order Assistant Collector has held that due to wrong application of customs Notification No. 208/81 goods were assessed free of duty as `life savings equipment , but the goods were correctly a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and ld. SDR, Sh. B.K. Singh for the Revenue. Ld. Counsel narrating the facts of this case pointed out to the judgments relied by them before the Collector and submitted that the Notification No. 46/89-Cus., dated 1-3-1989 is not a clarificatory notification and, therefore, as on the date of the clearance of goods Notification No. 208/81 has granted benefit to the item in question and, therefore, no duty had also been demanded by the department. The only question the department had raised was pertaining to the infringement of trade mark which was adjudicated by order-in-original dated 30-6-1987 by Collector of Customs, Coimbatore. The Collector in his order had clearly stated that Foley Balloon Catheter was exempted in terms of Serial No. 22B and 32 of Notification No. 208/81-Cus., dated 22-9-1981 as amended. The ld. advocate further submitted that, in fact, the show cause notice did not make any allegation regarding the goods being dutiable. He pointed out to the following portion from the previous order :- The issue to be decided here is whether the trade mark on the impugned goods namely ANGEL" is deceptively similar to the trade mark Kosan Angel and whether the deceptiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Customs Notification. The conclusion of the Tribunal that Foley Balloon Catheters are Suction Catheters was a finding of fact. That the decision was rendered in the context of a Customs Notification was immaterial. The opinion of the Experts as well as medical dictionaries were taken into consideration before the Tribunal reached the conclusion. Had it not been for the Explanation inserted in Notification 208-Cus., there can be no doubt that Foley Balloon Catheters would have continued to be exempted from duty under that notification. The Explanation was necessary to exclude what would otherwise have been covered. Therefore, the ld. Counsel submitted that Notification No. 46/89-Cus., dated 1-3-1989 had excluded from the grant of exemption these type of Foley Balloon Catheters, as they were different types of Suction Catheters and that the Government did not intend giving the benefit of Foley Balloon Catheters. He submitted that the explanation which was added by the amending notification is not a clarificatory notification but a categorical notification intended to deny the benefit to Foley Balloon Catheters and, therefore, the notification has only prospective effect an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Collector of Customs v. Shaw Wallace Co. Ltd. as reported in 1990 (50) E.L.T. 143. He relied on the ruling rendered by the Supreme Court in the case of Sone Valley Portland Cement Co. v. The General Mining Syndicate Pvt. Ltd. as reported in AIR 1976 SC 2520, which dealt with the aspect of interpretation of the statute having retrospective effect. He also referred to another ruling of Hon ble Supreme Court in the case of Lathia Industrial Suppliers Co. (P) Ltd. v. Collector of Central Excise, Baroda as reported in 1987 (29) E.L.T. 751. He also referred to pages 290-291 of Interpretation of Statutes by G.P. Singh, IV Edition, 1968. 4. We have carefully considered the submissions made by both the sides and we are fully convinced that the appeals deserves to be allowed. The matter has been now fully settled in terms of the citation referred to by the ld. advocate. The ld. SDR has been emphasising that the amending notification has retrospective effect. We are not in a position to appreciate this argument for the simple reason that there is no ambiguity in the original notification calling for a clarification or for that matter any aspect which was implicit which required to be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered opinion that all the judgments referred to by ld. SDR were in a different context and the same is not applicable to the situation arising herein. In Sone Valley Portland Cement Co. s case, Hon ble Supreme Court was dealing with interpretation of various provisions of Bihar Land Reforms Act (30 of 1950). The Hon ble Supreme Court also was dealing with the meaning of statue in the context of subsequent amending statutes, which would shed light upon the meaning of an Act by taking into consideration. `Parliamentary expositions as revealed by the later Act, which amends the earlier one for clearing any doubt or ambiguity. The Hon ble Supreme Court held that this principle has to be followed where a particular construction of the earlier Act will render the later incorporated Act ineffectional or otiose or inept. We do not see any applicability of this ruling to the facts of this case. In Lathia Industrial Supplies Co. (P) Ltd. s case (supra), the Hon ble Supreme Court was dealing with the question as to whether re-rubberising and relining of old and used rollers would amount to manufacture. The ratio of this ruling has no reliance to the facts of the present case. In Shaw Wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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