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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 ..... ce test would predominate. Reliance placed in the case of United Offset Process Pvt. Ltd v Assistant Collector of Customs [1988 (10) TMI 39 - SUPREME COURT OF INDIA], where it was held that 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 - duty drawback withdrawal and penalty set aside - petition allowed - decided in favor of petitioner. - W.P. (C) 577/2013 - - - Dated:- 23-1-2017 - MR. S. RAVINDRA BHAT MR. NAJMI WAZIRI JJ. Petitioner Through: Mr. P.V. Saravana Raju with Mr. A. Garg, Advocates. Respondents Through: Mr. Harpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is requested that their export consignment may kindly be cleared accordingly. S/d (R.K. Pandey) REGIONAL DIRECTOR 2. The Superintendent SIIB Customs addressed the Council for Leather Exports on 16.7.03 seeking opinion for the categorization of the product. The Council for leather exports, forwarded the sample to Footwear Design and Development Institute. The institute by its letter dated 13th October 2003 stated that the export goods fell under the category of chappal covered under Sl.No.64.10 of the drawback schedule. The letter of the Institute reads as follows: ALOK SINHA (I.A.S.) Managing Director To, The Regional Director Council for Leather Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery of drawback of ₹ 1.3 lakh and appropriated an amount of ₹ 2,935/- lying in balance in the drawback account at the Punjab National Bank, New Delhi. He also imposed a penalty of ₹ 1.25 lakh under Section 114 of the Customs Act. 5. The petitioner was aggrieved by the Order-in-Original and preferred an appeal to the Collector of Customs (Appeal). That appeal was rejected on 31.08.2010. It, therefore, preferred a revision application to the Central Government under Section 129DD of the Customs Act. This was rejected by the impugned order dated 12.03.2012. The reasoning of the Central Government is contained in the following extracts of its order: - 7. Government observes that the applicant sought to export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir letter dated 13.10.2003 stated that the impugned goods were not covered under the category of sandals. Meanwhile, the applicant also submitted a report from C.L.E., New Delhi. Stating that the goods covered vide impugned Shipping Bill were Sandles. However, Government notes that such opinion was given on the goods presented by applicant and not on the basis of samples, which were drawn from the impugned export consignment by department. As such, veracity of this report with respect to goods in question cannot be accepted. Further, the Regional Director, CLE opined that the FDDI being specialized body, their opinion prevails over others. Government notes that there is categorical opinion which clearly states that the goods were not Sanda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was not based upon documentary appraisal but in fact after examination of the tests samples. The Council of Leather Exports itself is an expert body and routinely deals with articles including clothing and footwear and in a best position to appraise the goods in question. In rejecting this summarily, the FDDI s opinion could not have been preferred. Furthermore not according an opportunity to the petitioner to cross-examine and/or question the expert apropos the FDDI s opinion would cast a doubt on the validity of the opinion itself. 7. Counsel for the Revenue urges that this Court should not exercise its discretionary jurisdiction to upset findings of fact. As to whether the articles were sandals or chappals should be left best ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the product sent herewith which falls under Chapter 64 serial No.64.06 Leather Sandals, namely, for Gents/Ladies/Children of the Drawback Schedule for 2003-04 (effective from 1st April, 2003), as per the Ministry of Finance, Department of Revenue (DBK Commissionerate) letter No.609/25/2002-DBK dt. 30th January, 2002 (copy enclosed for ready reference). 9. The respondents, in our opinion, acted upon prejudice and a preconceived notion that ladies sandals cannot be without a back strap. To hold so, there ought to have been some evidence of commercial purpose; the fact that the Council - a Central government body, which routinely deals with these issues in the context of export, had, based on evidence and instructions of the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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