A.i. Enterprises Vs. Commissioner of Customs - Court Judgment

Excerpt:
1. the appellants were engaged in the export of garments during the material period. they had imported 'plastic hangers' and filed bill of entry dated 03.11.1995 for clearance thereof claiming the benefit of notification no. 81/95-cus. dated 31.03.1995. this benefit was denied and consequently the goods had to be cleared on payment of applicable duty. however, the decision of the original authority was challenged before the commissioner (appeals) and the latter also held against the assessee. hence the present appeal.2. notification no. 81/95-cus. had exempted goods imported into india from payment of basic customs duty (bcd) and additional customs duty (acd) subject to certain conditions. the main condition was that the goods should have been imported for execution of an export order placed on the importer by the supplier of goods for jobbing, repairing, servicing, restoration, reconditioning or renovation. the second condition was that the imported goods after one or the other of the above operations should be re-exported to the supplier within the stipulated period. that the imported goods should be utilised only for discharge of export obligation and that there should be at least 10% value addition are some of the other conditions of the notification.both the lower authorities denied the benefit of the notification to the appellants on the ground that the import of the goods was not against any export order placed by the supplier of the goods for jobbing etc. it is submitted by the appellant's counsel that the hangers imported by them were actually exported along with garments and, therefore, the benefit of the notification should have been allowed to them by condoning procedural lapses if any. learned counsel has placed on record some of the relevant shipping bills containing endorsements of the apparel export promotion council (aepc) regarding quota allocation for export of garments. it is submitted that aepc would not make such allocation if the exports were not against specific export orders. it is, therefore, urged by learned counsel that these shipping bills containing aepc's endorsements be accepted as proof of the fact that the exports were made against specific export orders. he has also invited our attention to the declaration made by the exporter which is to the effect that they have used the plastic hangers for the export of ready-made garments.3. learned sdr submits that none of the conditions of the notification was fulfilled by the party. it was not established that the imports of hangers were against export orders placed by the supplier of the goods for jobbing, repairing etc. the hangers with the garments were not shown to have been re-exported to the supplier of the hangers. it was not shown that the appellants were doing a job work for the overseas supplier. on these facts the benefit of the notification could hardly be claimed by them.4. after considering the submissions, we have to accept the case made out by learned sdr. there is no evidence, on record, of any export order having been placed on the appellants by the foreign supplier of hangers. whether the imports were made for any jobbing for the foreign party could be ascertained only from the 'export order'. hence as rightly pointed out by learned sdr, the appellants have not been able to establish that they fulfilled the main condition under the notification. admittedly, the hangers along with garments were exported to different parties, whereas the notification had required that the exports be made to the supplier of the input. there is also no material on record to indicate as to whether any of the other conditions of the notification was fulfilled by the appellants. the case law cited by learned counsel viz. texport industries ltd. v. commissioner of customs, chennai and brindha enterprises commissioner of customs, chennai 2005 (198) e.l.t. 584 (tri.-chennai) is of no aid to the appellants inasmuch as both the decisions discuss the scope of the expression "jobbing" only.5. in the result, the impugned order is sustained and this appeal is dismissed.

Judgment:
1. The appellants were engaged in the export of garments during the material period. They had imported 'plastic hangers' and filed bill of entry dated 03.11.1995 for clearance thereof claiming the benefit of Notification No. 81/95-Cus. Dated 31.03.1995. This benefit was denied and consequently the goods had to be cleared on payment of applicable duty. However, the decision of the original authority was challenged before the Commissioner (Appeals) and the latter also held against the assessee. Hence the present appeal.

2. Notification No. 81/95-Cus. had exempted goods imported into India from payment of Basic Customs Duty (BCD) and Additional Customs Duty (ACD) subject to certain conditions. The main condition was that the goods should have been imported for execution of an export order placed on the importer by the supplier of goods for jobbing, repairing, servicing, restoration, reconditioning or renovation. The second condition was that the imported goods after one or the other of the above operations should be re-exported to the supplier within the stipulated period. That the imported goods should be utilised only for discharge of export obligation and that there should be at least 10% value addition are some of the other conditions of the Notification.

Both the lower authorities denied the benefit of the Notification to the appellants on the ground that the import of the goods was not against any export order placed by the supplier of the goods for jobbing etc. It is submitted by the appellant's counsel that the hangers imported by them were actually exported along with garments and, therefore, the benefit of the Notification should have been allowed to them by condoning procedural lapses if any. Learned Counsel has placed on record some of the relevant Shipping Bills containing endorsements of the Apparel Export Promotion Council (AEPC) regarding quota allocation for export of garments. It is submitted that AEPC would not make such allocation if the exports were not against specific export orders. It is, therefore, urged by learned Counsel that these Shipping Bills containing AEPC's endorsements be accepted as proof of the fact that the exports were made against specific export orders. He has also invited our attention to the declaration made by the exporter which is to the effect that they have used the plastic hangers for the export of ready-made garments.

3. Learned SDR submits that none of the conditions of the Notification was fulfilled by the party. It was not established that the imports of hangers were against export orders placed by the supplier of the goods for jobbing, repairing etc. The hangers with the garments were not shown to have been re-exported to the supplier of the hangers. It was not shown that the appellants were doing a job work for the overseas supplier. On these facts the benefit of the Notification could hardly be claimed by them.

4. After considering the submissions, we have to accept the case made out by learned SDR. There is no evidence, on record, of any export order having been placed on the appellants by the foreign supplier of hangers. Whether the imports were made for any jobbing for the foreign party could be ascertained only from the 'export order'. Hence as rightly pointed out by learned SDR, the appellants have not been able to establish that they fulfilled the main condition under the Notification. Admittedly, the hangers along with garments were exported to different parties, whereas the Notification had required that the exports be made to the supplier of the input. There is also no material on record to indicate as to whether any of the other conditions of the Notification was fulfilled by the appellants. The case law cited by learned Counsel viz. Texport Industries Ltd. v. Commissioner of Customs, Chennai and Brindha Enterprises Commissioner of Customs, Chennai 2005 (198) E.L.T. 584 (Tri.-Chennai) is of no aid to the appellants inasmuch as both the decisions discuss the scope of the expression "jobbing" only.

5. In the result, the impugned order is sustained and this appeal is dismissed.