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TMI Blog2023 (1) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... oners by claiming exemption under the said notification, the adjudication as a matter of fact by this Court and confirmation by the Supreme Court, we are convinced that there is no disputed question of fact for verification by the appellate authority vis-a-vis the subject Bills of Entry and relegating the petitioners to work out the remedy of appeal. Even other at this point of time such course is avoidable and unnecessary both from the point of view of the importer and the department. Hence, the judgment under appeal needs to be set aside, and accordingly, set aside and the Writ Petition stands allowed. However, it is made clear that the relief granted to the petitioners shall be limited to the subject consignments. The revenue is free to examine each one of the consignments imported by the petitioners and verify whether the product imported by the petitioners as a fact would fall within the same category of product considered by this Court. - THE HONOURABLE MR.JUSTICE S.V.BHATTI AND THE HONOURABLE MR.JUSTICE BASANT BALAJI APPELLANTS: ADV SRI.P.R.VENKATESH RESPONDENTS: ADVS. ASSISTANT SOLICITOR GENERAL SMT.SHEELA DEVI.I., SC, CENTRAL BOARD OF EXCISE CUSTOM SR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Sl.No.282 of notification No.12 of 2012. Therefore, the earlier adjudication or the orders in favour of the petitioners on availing exemption are not applicable. Thus, the revenue demanded customs duty from the petitioners. The petitioners filed Writ Petition No.21161 of 2013 and have prayed for the following reliefs: a) Declare that the benefit of exemption from payment of duty extended to Buttons given as per the Entry to Sl.No.140 under Notification No.21/2002 is liable to be extended to the petitioners in the Entry under the new Sl.No.232 in Notification No.12/2012 notwithstanding the amendment to Entry (a) Fasteners in Sl.No.167 as amended by Notification No.21/2001 and later on replaced by the new notification No.12/2012 under Sl.No.282; b) issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent to continue to allow clearance of item of import by the petitioners described as Snap Buttons/Snap Fasteners either in parts or full as per the system and practice hitherto followed without insisting for payment of duty; c) issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 and with respect to buttons which can be used as fasteners, it will come under Sl.No.282. 11, Apparently, 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, 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. Petitioners of course had an opportunity to challenge the finding by filing an appeal which was not opted by the petitioners. 6. In effect, the learned judge noticed that the change of items covered by zip fasteners etc., is a matter for verification by the authorities. Therefore, in such circumstances, it is desirable that the petitioners avail the remedy under the Customs Act on the duty demanded. The petitioners, aggrieved by the above view of the learned single judge and also relegating the petitioners to avail the remedy of appeal, have filed the appeal. 7. On 21.02.2017, The petitioners filed a Writ Petition and was disposed of by the judgment impugned in the Writ Appeal. The Writ Appeal was taken up for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Single Judge to exercise the discretionary jurisdiction suffers from infirmity. The petitioners ought not to have been relegated to the ordeal of adjudication on the very same issue. Therefore, the learned counsel argues with the force that the declaration sought in the writ petition is to continue to avail the benefit of exemption as long as the petitioners import the same goods and that there is no change in the notification issued by the respondents. He has invited our attention to all the orders passed in favour of the petitioners and demonstrate the similarity of the product considered by this Court in the earlier round of litigation and the goods being imported by the petitioners in the subject impugned orders. He prays for allowing the Writ Petition by setting aside the judgment impugned in the Writ Appeal. 9. I.Sheeladevi, learned counsel for the respondents referring to the instructions received, states that in the earlier round of litigation, the department classified the goods imported by the petitioner as falling under Sl.No.167, the department treated the same as fasteners. The petitioners are importing buttons and bills of entry refer to the nature of goods impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. Therefore, the excerpts from the notification and the judgment are stated hereunder: Notification No.21 of 2002-Customs dated 1.3.2002 reads as follows: Ist March, 2002 Notification No.21/2002-Customs In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962) and in supersession of the notification of the Government of India in the Ministry of Finance Department of Revenue). No.17/2001- Customs dated the 1st March, 2001[ G.S.R. 116(E) dated the 1st March, 2001], the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods of the description specified in column (3) of the Table below or column (3) of the said Table read with the relevant List appended hereto, as the case may be, and falling within the chapter, heading or sub-heading of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as are specified in the corresponding entry in column (2) of the said Table, when imported to India,- a) from so much of the duty of customs leviable thereon under the said First Schedule as is in excess of the amount calculated at the rate specified in the corres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g) Rivets h) Collar stays, collar patties, butterfly and other garment stays including plastic stays i) Fusible embroidery motifs or prints j) aces k) Badges including embroidered badges l) Embroidery threads m) Sewing thread n) Stones (other than precious and semi precious) o) Sequin p) Tape, Elastic tape and hook tape of width not exceeding 75 mm q) Velcro tape r) Cord and Cord stopper s) Toggies Polywadding materials Nil Nil 21 The revenue had categorised the import of buttons by the petitioners under Sl.No.167. It is on this controversy that this Court had considered the goods imported by the petitioners and recorded the following finding : During hearing of this appeal, the respondent's counsel produced before us the parts of button imported, and on examining the same we notice that four parts of button make a full operational press button on the cloth. In fact, the button operationally consists of two parts, one male and the other female. Each such part is made up of two items, which are riveted from both sides of the cloth to make on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as are specified in the corresponding entry in column (2) of the said Table, when imported into India, (a) from so much of the duty of customs leviable thereon under the said First Schedule as is in excess of the amount calculated at the standard rate specified in the corresponding entry in column (4) of the said Table, (b) from so much of the additional duty leviable thereon under sub-section (1) of section 3 of the said Customs Tariff Act 1975 (51 of 1975) as is in excess of the additional duty rate specified in the corresponding entry in column (5) of the said Table. subject to any of the conditions specified in the Annexure to this notification, the condition number of which is mentioned in the corresponding entry in column (6) of the said Table: S.No Chapter or Heading or sub-heading Description of goods Standard rate Additional duty rate Condition No. (1) (2) (3) (4) (5) (6) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said question will not invite long deliberation. It may be noticed and recorded from the exhibits filed by the petitioner in the writ petition that the petitioner continues to import snap buttons. The product imported by the petitioners under the subject bills of entry is not claimed as stated differently from the goods imported by the petitioner in the first round of litigation. After appreciating the entries in Notification No.21 of 2002, the snap buttons imported by the petitioners by claiming exemption under the said notification, the adjudication as a matter of fact by this Court and confirmation by the Supreme Court, we are convinced that there is no disputed question of fact for verification by the appellate authority vis-a-vis the subject Bills of Entry and relegating the petitioners to work out the remedy of appeal. Even other at this point of time such course is avoidable and unnecessary both from the point of view of the importer and the department. Hence we are of the view that the judgment under appeal needs to be set aside, and accordingly, set aside and the Writ Petition stands allowed. However, it is made clear that the relief granted to the petitioners shall be l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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