Page 187 - ELT_15th August 2020_Vol 373_Part 4

2020 ] SRI VIJAYALAKSHMI LEATHERS v. PR. COMMR. OF CUSTOMS-III (SIIB), CHENNAI 521

their examination, i.e., 14-10-2016, on the ground, the subject goods are liable for
confiscation under Section 113(i) of the Act.
7. It is, in this background, that the impugned order came to be passed;
which, the petitioners claim, was served upon them on 25-11-2016.
8. As indicated above, aggrieved by the condition put forth in para-
graph 6(1) of the impugned order, which, inter alia, requires the petitioners to
pay the entire applicable export duty - these writ petitions have been filed.
9. Learned Counsel for the petitioners says that not only do the peti-
tioners have a good prima facie case on merits, but the condition imposed is oner-
ous and is contrary to the orders passed in the following cases :
(i) Commissioner v. Navshakti Industries Ltd., 2011 (269) E.L.T. A146
(S.C.).
(ii) Zest Aviation Pvt. Ltd. v. Union of India, 2013 (289) E.L.T. 243 (Del.).
(iii) Aban Exim Pvt. Ltd. v. Principal Commissioner of Customs, 2015 (319)
E.L.T. 430 (Del.).
9.1 It is also argued by the Learned Counsel for the petitioners that the
respondents contention that the subject goods are not “finished leather”, is, per-
haps, based on a misunderstanding of the processes involved in reaching the fin-
ished leather stage. It is the Learned Counsel’s submission (which, quite obvious-
ly, can only be based on guess work, as the investigation is still on) that often
respondents classify such link goods as unfinished leather, when one of the pro-
cesses, which is, otherwise, minor in nature, is not complete. Towards this end,
Learned Counsel gave an example of a process described as “finishing coat”. It
was stated that, in past, objection of this nature was raised by the respondents,
which was examined and found untenable, both by the Tribunal and this Court.
9.2 In this regard Learned Counsel drew my attention to two judg-
ments of the Tribunal, namely, (i) Vijayalakshmi Leathers v. Commissioner of Cus-
toms, 2009 (119) E.L.T. 656 (Tribunal); and (ii) judgment dated 10-7-2009, passed
in Appeal No. C/267/2009, titled : M/s. Expos Leather Company v. Commissioner of
Customs, Chennai.
9.3 As would be obvious from the cause title of the instant writ peti-
tions that, Vijayalakshmi Leather case relates to one of the petitioner's before me,
i.e., petitioner in W.P. No. 43062 of 2016.
9.4 Furthermore, Learned Counsel points out that the judgment of the
Tribunal in Expos Leather Company case was challenged before this Court. This
Court, vide judgment dated 19-11-2010, passed in C.M.A. No. 2937 of 2010 re-
pelled the challenge. A copy of the judgment has been filed to drive home the
point.
9.5 In sum, based on the judgments of the Tribunal, it was argued by
the Learned Counsel that for the subject goods, to reach the stage of “finished
leather”, there are several processes involved, and that, merely, because there are
minor deficiencies, the subject goods cannot be classified as “unfinished leather”,
as is sought to be done by the respondents.
9.6 It is, thus, the submission of the Learned Counsel for the petitioners
that the entire case set up by the respondents, as if a fraud has been committed

EXCISE LAW TIMES  15th August 2020  187