Judgment:
1. This is an appeal against the order of the Additional Collector denying the benefit of duty exemption entitlement certificate on zip fasteners and artificial fur of different sizes to be fitted in shoe uppers on the ground that the sizes of the zip fasteners imported and for use in the shoe uppers was different and that the area of the artificial fur was not indicated.
2. The facts in brief of the case are that the appellants are engaged in the export of shoe uppers under the duty exemption entitlement certificate scheme. They imported zip fasteners of various sizes to be fitted in the shoe uppers which they exported. The Department alleged that since the sizes of zip fasteners which were fitted in shoe uppers were different, from those now imported therefore, such zip fasteners were not eligible for duty free import under the DEEC scheme. In the case of artificial fur the Department alleged that in certain cases the area of the fur was not indicated and, therefore, the Department denied them the duty free import of such type of artificial fur. The appellants have come up in appeal against the findings of the lower authorities.
3. Shri R. Subramanian, ld. Consultant submits that this issue was referred to the Central Board of Excise and Customs as well as to the office of the Director General (Foreign Trade). That the issue was examined by the Government and they issued instructions and the Department of Revenue of the Ministry of Finance issued clarificatory instructions contained in their letter F. No. 605/76/90-DDK, dated 25-3-1991 and the Ministry of Commerce issued a Public Notice No.135/ITC/PN/92-93, dated 4-3-1991 clarifying the position. He submits that these instructions were brought to the notice of the adjudicating authority but by then the adjudicating authority had already passed the order. Therefore, the instructions contained in these two letters could not be taken note of by the adjudicating authority. The ld. Counsel submits that these instructions are vital in their case and prays that the matter may be remanded to the lower authorities for examining their case in the light of the clarification contained in the letter of the Department of Revenue as also of the Ministry of Commerce. In support of his contention the ld. Consultant submits that this Tribunal in the case of Liberty Footwear Co. and M/s. Lifo International, their sister concern, on the identical facts, remanded the matter to the lower authorities for de novo adjudication. He therefore prays that the present case may also be remanded to the jurisdictional Commissioner for consideration.
4. Shri A.M. Tilak, ld. JDR reiterates the findings of the adjudicating authority stating that in the circumstances brought out by the ld.Consultant for the appellants he has no objection if the case is remanded for de novo adjudication to the jurisdictional Commissioner.
5. Heard the submissions of both sides. We note that the instructions issued by the Department of- Revenue and the Ministry of Commerce has a strong bearing on the facts of the present case. These instructions no doubt were brought to the notice of the adjudicating authority but it was too late for him as the order had already been, dictated. Thus, these vital instructions were not before the adjudicating authority. In the circumstances, we consider it a fit case for remand. Accordingly, we direct the jurisdictional Commissioner to examine the entire case in the light of the instructions issued by the Department of Revenue and the Ministry of Commerce on the subject referred to above and pass appropriate orders in accordance with law after affording an opportunity to the appellants for presenting their case.