M.V. ENTERPRISES Vs. COMMISSIONER OF CUSTOMS, LUCKNOW

JUDGEMENT

(1.) THE issue raised in both these appeals is whether the Gold Star brand sports shoes imported by the appellants were eligible to be assessed to Nil rate of additional Customs duty as applicable to goods classifiable under sub -heading 6401.12 of Chapter 64 of Central Excise Tariff.

(2.) Chapter 64 relates to footwear, gaiters and the like and parts of such articles and heading 64.01 covers foot wear and parts thereof. Sub -heading 6401.12 covers "Footwear of retail price not exceeding Rs. 125/ - per pair". The appellants claimed assessment of the shoes in question to additional customs duty under heading 6401.12 at Nil rate of duty, upon a declaration that the retail sale price of the shoe was below Rs. 125/ -per pair. The Customs authorities accepted the declaration and assessed the goods accordingly. However, subsequently, proceedings were initiated for recovery of duty under Sub -heading 6401.19 i.e. as "other" footwear. Allegation was also made that the short levy was on account of mis -declaration of retail price by the appellant importer. Evidence was also advanced to show that the footwear in question was actually sold in retail at sale prices exceeding Rs. 125/ - per pair. The impugned order held that the shoes in question were not eligible for classification under 6401.12 at all. The order also upheld charges of mis -declaration. Consequently, duty demands have been confirmed, seized goods confiscated, penalties imposed and interest claimed on the amount of duty short -levied.

(3.) AS against the above submissions on behalf of the appellant, learned SDR submitted that short -levy of duty in the present case was clear and was liable to be recovered under Section 28 of the Customs Act. He submitted that additional Custom duty (C.V. duty) was leviable on imported goods under Section 3 of the Tariff Act at the same rate at which Central Excise duty was leviable on goods manufactured in India. Footwear manufactured in India was leviable to duty under Chapter 64 of the Central Excise Tariff. For this reason, additional duty of custom leviable on imported footwear was leviable at the same rate as applicable to footwear under Chapter 64. He submitted that note 2(e) to Chapter 64 of Central Excise Tariff stated that for the purpose of heading No. 6401, "the expression 'retail sale price' has the meaning assigned to it in Section 4A of Central Excise Act, 1944". He submitted that it is a specific requirement under Section 4A that footwear claiming assessment in terms of that Section should have its retail sale price declared on the goods or the packages thereof. The learned SDR pointed out that there is no dispute in the present case that the shoes under import did not contain any declaration regarding price on the shoes themselves or on the packages thereof. The learned SDR submitted that in the absence of such price declaration on the shoes or their packages, they were not to be considered for classification under sub -heading 6401.12. He pointed out that finding in this regard on pages 14 and 15 of the impugned order are entirely in conformity with the provisions of Chapter 64 of Central Excise Tariff and Section 4A of the Central Excise Act. The learned SDR submitted that recovery of the short -levied duty in these circumstances was not at all dependant on the appellant's declaration regarding retail sale price. The absence of declaration of retail sale price on the shoes or on the packages thereof disqualified these footwear from classification under sub -heading 6401.12 and they had to be classified as "other" footwear.