9911796707
TMI Blog1989 (8) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... Council for Leather Exports as manufacturer-exporter having registration certificate dated 26th July, 1985. 'Es-Kay Leather Products' is allegedly a registered SSI Unit under the Directorate of Cottage and Small-Scale Industries bearing proper registration number. It is further stated that in the usual course of business the petitioner entered into a contract with MESSRS METAPLAST GMBH COMPANY of West Germany for supply of stamping foils for the purpose of stamping brand names in different colours on the leather products as also to foil leather in different shapes. It is the specific case of the petitioner that he is an "actual user" within the meaning of the Imports and Exports Policy 1988-91 and stamping foils are items of raw materials components and samples allowed for import under Open General Licence by actual user (industrial) subject to an actual user conditions and the same appear in Appendix VI, List 8, Part I of the Imports Exports Policy, 1988-91 at Serial No. 558. It is placed on record that the foreign seller despatched the one consignment of metallised stamp-foils contained in 8 (eight) pallets on 15 (fifteen) packages and the consignment arrived at the Calcutta A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The writ petition is strongly contested by the Custom Authorities by filing an affidavit. It is disclosed that during the course of searches carried by the Specially Intelligence and Investigation Branch (SIIB) some catalogues of the manufacturers of the stamping foils were seized. A perusal of the said catalogue will show that the stamping foils were and are being produced for such diversified industries as packaging, greeting cards, book binding, graphic arts, radio, television, automotives etc., and there are various types of stamping foils. It is asserted that while ordering import of stamping foils, it is imperative that the importer must specify the grade/quality as well as the colour of the Stamping Foil. The application of each type of stamping foil has to be determined by factors such as general characteristics, substrates, definition, release, coverage and stamping temperature and above an the specific industry for which it is manufactured. It is claimed further that intelligence has been gathered that large quantities of stamping foils cleared under Notification No. 224/85-Cus. for use in the leather industry are actually sold in the open market at a very high premium t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tom Authorities if the goods are allowed to be cleared then the main evidence will go out of the hands of the Custom Authorities. 4. It appears further that on 9th of May, 1989, the writ petition was moved for an appropriate order and on 10th of May, 1989 an interim order was made to the extent that the Custom Authorities shall not force the production of the bank guarantee for release of the goods in question and further directed that the other terms as asked for by the Custom Authorities for the release of the goods as appearing in the endorsement made on the Bill of Entry, may, however, be enforced. No appeal was preferred against the said order. On 17th May, 1989 a fresh application was made by the petitioner for modification of the interim order and the same was rejected and an appeal was preferred and the Division Bench also refused to pass any further interim order. 5. As agreed by the Learned Counsel appearing for the petitioner and the Custom Authorities, the entire writ petition on merit is taken up for consideration since all the affidavits have been filed and all other formalities have been complied with. 6. Mr. S. Pal, the Learned Counsel appearing for the writ p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of the notification. 8. Having heard the Learned Counsel of the respective parties at length and after going through their pleadings and materials on record, it appears that for the purpose of the release of the imported goods, the petitioner has been directed by the Custom Authorities to produce :- (i) End Use Bond; (ii) Bank Guarantee for whole of the difference between standard and concessional rate of duty with a condition, that the consumption to be verified and issued by the Central Excise Authority. (iii) Manufacturer's catalogue/literature regarding the use in the leather industry. (iv) Explanation regarding valuation in terms of 1" x 200' (the surface area basis). 9. The petitioner being aggrieved has come to this Court. The only consideration before this Court is as to whether the conditions imposed by the Custom Authorities are whether permissible in law and justified and whether the interference by this Court is necessary. 10. It is admitted by both sides that Exemption Notification No. 224/85-Cus. and 158/85-Cus. as amended by Notification No. 225/85-Cus. provide benefit to all the persons of importing stamping foils for the use in leather indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... get exemption under S. 5(2)(a)(iv) it is not necessary to show that the goods in question, namely, the cement supplied by the assessee in this case was actually used in the generation or distribution of electrical energy. It must be noted that the important words used in the relevant provisions are "goods for use by it in the generation or distribution of such energy". On a plain reading of the relevant clause it is clear that the expression "for use" must mean "intended for use". If the intention of the legislature was to limit the exemption only to such goods sold as were actually used by the undertaking in the generation and distribution of electrical energy, the phraseology used in the exemption clause would have been different as, for example, "goods actually used" or "goods used". 1971 Tax LR 702 (Madhya Pradesh) and AIR 1968 Punj 548, Distinguished." 11. Thus looking to the legal aspect of the matter, this Court finds that the conditions made by the Custom Authorities for taking precautionary measure cannot be strictly supported in law. Besides, amongst 4 (four) conditions the petitioner does not oppose with regard to the production of end use certificate. The bank guaran ..... 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