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TMI Blog2017 (1) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered "chappals" and not "sandals" as declared. To clarify and ensure proper description of the goods, the petitioner forwarded samples to the Council of Leather Exports, New Delhi by letter dated 19.5.2003. The Regional Director of the Council for Leather Exports after examining the goods issued a certificate which is quoted below: "CLE/NR/CUSTOMS/2002-03/136 May 19, 2003 TO WHOM IT MAY CONCERN M/s. Wishall International No.13 (Old No.7) Balaji Nagar, First Main Road, Ekkatuthangal, Guindy, Chennai- 600 097, are one of our member-exporters of Leather Footwear. They have secured export order for the Ladies Leather Sandals without back-strap but with heel thickness of more than 10 mm, as per attested samples of the product ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar number 8/2002-cus dated 30th Jan.2002. We therefore, conclude that provided articles Fall under the category of "Chappal‟ covered under Sl.No.64.10. Regards, Alok Sinha" 3. Based on this opinion of Footwear Design and Development Institute, a Show Cause Notice was issued to the petitioner on 20.5.2005 asking it why an amount of Rs. 1,30,800/- claimed, erroneously sanctioned and paid as differential duty drawback should not be recovered along with interest @15% p.m. and why the amount of Rs. 2,935/- in draw back account no.187925 maintained at Punjab national Bank MCH should not be appropriated towards the drawback amount paid and recoverable from the petitioner. The notice also proposed penalty under Section 114 of the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion, the Regional Director, CLE, New Delhi was summoned to give his voluntary statement under section 108 of the Custom Act, 1962, who opined that FDDI were better equipped to deal with the technical matters and their opinion prevails over any other opinion. Accordingly, original authority after following due process of law vide impugned Order-in-Original ordered for recovery of erroneously sanctioned Drawback along with applicable interest and also imposed penalty upon applicant. Commissioner (Appeal) upheld impugned Order-in-Original. Now, applicant has filed this Revision Application on the ground mentioned in para (4) above. 8. Government notes that the department had drawn the representative sample from export assignment and referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said position there remains no contradiction in opinion of CLE & FDDI, and therefore the cross examination of Shri Alok Sinha, IAS would have served no purpose. As such, Commissioner (Appeals) has rightly denied his cross-examination. In view of above circumstances Government observes that goods were rightly classified and drawback schedule Sr.No.64.10 as chappals." The Central Government granted limited relief, however, in respect of the penalty imposed; it reduced it to Rs. 10,000/-. 6. The petitioner argues that the classification adopted in all previous years was consistent with trade understanding with respect to the goods, i.e., leather sandals. The circumstance that they did not contain strap in any way did not detract from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear. The opinion given in favour of the petitioner, by the Council, was of an expert body; it was however doubted. As is apparent from the pleadings and the submissions that the trigger of suspicion that the petitioner had wrongly described the article, was because the article did not possess a strap at the back. Whatever be the reason, once the Council made its determination: based on inspection of the sample, and given that the opinion was based on objective material, there ought to have been something more for the FDDI to conclude that "We therefore, conclude that provided articles Fall under the category of "Chappal‟ covered under Sl.No.64.10". The Council's opinion was based on the Central Government's letter: "They have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e used in the trade or industry or in the market or, in other words, how these are dealt with by the people who deal in them, provided that there is a market for these types of goods. This principle is well known as classification on the basis of trade parlance. This is an accepted form of construction. It is a well known principle that if the definition of a particular expression is not given, it must be understood in its popular or common sense viz. in the sense how that expression is used everyday by those who use or deal with those goods" 10. Having regard to the above and the totality of circumstances, this court is of the opinion that the impugned orders, upholding duty draw back withdrawal and imposing penalty cannot be sustained. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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