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TMI Blog2017 (3) TMI 1492X X X X Extracts X X X X X X X X Extracts X X X X ..... 282 relates to fasteners, including buttons and snap fasteners. Apparently, there is some difference as far as buttons are concerned compared to that of fasteners. In Sl.No.232, buttons alone has been mentioned whereas in Sl.No.282, the word used is "fasteners" and it is qualified by the words "including buttons and snap fasteners, zip fasteners, including zippers in roll, sliders/pullers and end-stoppers." In other words, if it is merely buttons, it comes under Sl.No.232 and with respect to buttons which can be used as fasteners, it will come under Sl.No.282. There is a difference between both the commodities and it is for the various customs authorities to verify the same and arrive at a conclusion. Hence, I do not think that this Court will be justified in arriving at a conclusion as to whether the particular commodity was either "button" coming under Sl.No.232 or "fasteners"/snap fasteners" coming under Sl.No.282 The petitioners are permitted to prefer an appeal - goods to be released on furnishing of bank guarantee - petition allowed - decided partly in favor of petitioner. - WP (C). No. 21161 of 2013 (U) - - - Dated:- 21-2-2017 - A. M. Shaffique, J. For the Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners penalty for misdeclaration. Petitioners preferred an appeal before the Commissioner of Appeals, who confirmed the order and the matter was taken up before the Customs, Excise and Service Tax Appellate Tribunal, Bangalore (CESTAT) as Customs Appeal No.281/2008. The Tribunal allowed the appeal holding that button included in Sl.No.140 includes snap buttons as well. Though a further appeal was filed by the Department before this Court as Customs Appeal No.3/2010, by judgment dated 25/7/2011, this Court confirmed the view of the Tribunal. The matter was taken up before the Apex Court by filing Special Leave Petition No.10900/2012, which came to be dismissed. Therefore, according to the petitioners, they were getting the benefit of exemption in terms of Sl.No.140. In the meantime, petitioners were again served with another notice dated 2/5/2013 in respect of certain Bill of Entries inter alia contending that there is a change brought about by way of amendment to notification No.21/2002 w.e.f. 1/3/2011 as per notification No.21/2011-Cus, which is produced as Ext.P11. The Department took up a stand that Sl.No.167 has undergone a change. By the amendment in Ext.P11 notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parts of the button which would also be covered by Entry 140. The discussion was whether parts of a button would be eligible for the benefit under Sl.No.140 when the said exemption was available to buttons. The contention urged is that the actual issue whether the snap fasteners would fall under Sl.No.140 or Sl.No.167 was not discussed. It is therefore contended that the judgment of the CESTAT which was confirmed by this Court did not consider the difference between button and snap fasteners. The very fact that snap fasteners was included by amending the notification and Sl.No.167 was amended incorporating snap fasteners clearly indicates that it is a different commodity liable to be exempted only on compliance of certain conditions as stipulated in the notification. It is further contended that the impugned order can be challenged by preferring appropriate appeal before the appellate authority and there is no reason why this Court should consider the matter. 7. The petitioners have filed reply affidavit controverting the stand taken by the department. 8. There cannot be any dispute regarding the fact that Exst.P13 and P14 orders passed by the Deputy Commissioner of Customs i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific entry is made under Sl.No.167 of notification 21/2002 and Sl.No.282 of notification 12/2012, there is an obligation to comply with the conditions to claim exemption from paying duty. It is therefore clear that the order passed by the CESTAT as well as the judgment of this Court was not considering the question regarding snap fasteners which is specifically covered by virtue of an amendment made to Sl.No.167 as per notification 21/2011 and incorporated in notification 12/2012 as well. The amended entry at Sl.No.167 of notification 21/2011 indicates the item as fasteners including button and snap fasteners. Therefore, I do not think that Ext.P9 and subsequent proceedings have been taken contrary to the finding in the orders at Exts.P5 and P6. In other words, the present provisional assessment is based on the amended provision by which the meaning of fasteners had been extended as including button and snap fasteners. Hence, the Department is not estopped from taking action on the basis of the amended provision. 10. Learned counsel for the petitioners further argued that in so far as the successive notifications did not change the nature and character of the entry buttons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunity to challenge the finding by filing an appeal which was not opted by the petitioners. An interim order was also granted by this Court directing the 2nd respondent to release the goods imported by the petitioners on furnishing bank guarantee. Primarily, if the goods can be termed as fasteners or snap fasteners, it will only come under Sl.No.282. 12. Be that as it may, since the petitioners have the right of appeal which has been lost on account of filing of the writ petition, if the petitioners could substantiate that the goods imported are not fasteners and only buttons as seen in Sl.No.232 of Customs Notification of the year 2012, it would be appropriate that an opportunity is granted for the same. Accordingly, this writ petition is disposed of as under:- (i) That the petitioners are permitted to prefer an appeal against the impugned orders, Exts.P13 and P14. (ii) The time during which this writ petition was pending before this Court, i.e., from 26/8/2013, till the date of judgment, shall be excluded in computing the period of limitation. (iii) Invocation of the Bank Guarantee given by the petitioner shall be kept in abeyance for a period of one month from to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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