ORDER
K. Prakash Anand, Member (T)
1. This is a Revision Application filed by the appellants before the Government of India. On the setting up of this Tribunal, it has been transferred here and is being heard as an appeal before us.
2, The appellants have stated that the amount of refund involved in the present matter is small and, therefore, they would not like to be present personally and the appeal may be decided on merits.
3,, The matter pertains to claim of refund on Zip Fasteners imported by the appellants, who are manufacturers of readymade garments, invoking the benefit of Notification No. 29/79 dated 10-2-1979 which exempted buckles and other embellishments for footwear, used in the leather industry. The benefit of the exemption was denied at the level of the Assistant Collector on the ground that the goods imported could not be considered as embellishment for footwear. When the party went up in appeal before the Appellate Collector of Customs, Bombay, he rejected the appeal holding inter alia, that the importers are not in the leather industry for footwear, which is one of the essential pre-requisites of the Notification.
4. In the Revision Application, the appellants have urged that they have imported the said impugned goods against valid Import Licenses covering Import/Export linked items. It is urged that the licenses are transferable to actual users in a particular industry. Reference is also made to the Government of India Revision Order No. 371/B-374/B of 1981, which we find is available in 1981 ECR 323D, which decided that Zip Fasteners and Snap Fasteners were covered by the expression “embellishment for footwear.”
5. The department is represented by Smt. Dolly Saxena, the learned Departmental Representative. She emphasizes that as per the Notification, exemption is in respect of buckles and other embellishment for footwears used in the leather industry. In this case, it would appear that the zip Fasteners are being imported for use in the readymade garment industry. Furthermore, it is submitted that Zip Fasteners have a functional use in the shoe and, therefore, even if used in the leather industry for footwear, they cannot be considered as an embellishment.
6. Above all, the department has relied on the decision of this Tribunal in favour of the department in the case of Ashish and Co. and Ors. v. Collector of Customs, Bombay 1986 (25) ELT 114.
7 We have carefully considered the written submissions of the appellants and the arguments put forward on behalf of the department. One of the points made by the appellants is that they imported the impugned goods against valid Import Licenses covering Import/Export linked items and that such licenses are transferable. This argument is not understandable as the case against the appellants is not that the imports have taken place without valid Import licenses. The question is only Whether they are entitled to the benefit of a particular exemption Notification. So far as the liability of the goods to import duty is concerned, the appellants have cited in their favour the Government of India’s Revision Order No. 371/B-374/B of 1981, which we have carefully perused. However, we find that the entire issue as to what constitutes embellishment has been gone into recently in the order of this Tribunal in the case of Ashish & Co. and Ors. (supra), the ratio of which will be briefly referred to by us later in this order.
8. From the department’s side, an emphasis has been laid on the fact that the importer is a readymade garments manufacturer. This point has also been made if) the Order-in-Appeal and remains unanswered by the appellants except to say that they have imported the goods against valid import licenses which are transferable. They have missed the point that before the benefit of the relevant exemption Notification can be ‘-given to them, it has to be shown that the goods imported are used in the leather industry. Appellants have failed to do this.
9.It is also submitted on behalf of the department that it was for the appellants to establish that the impugned goods are embellishments for footwear, which they have not done. We do not find anything in the written submissions which answers this point also.
10. In the decision of the Tribunal in the case of Ashish & Co. (supra), it was held that the legislative intent behind the Notification in question was clearly that the embellishments for footwear when imported should be used in the leather industry. The mere import of such embellishments, if not used in the leather industry, would not merit exemption under the relevant Notification, as use of the material for purpose of embellishment for footwear was held to be a condition precedent for claiming the benefit of that Notification. It was pointed out that if the intention were to grant the benefit of the exemption to an article capable of being used as an embellishment, then it was not necessary to provide in the Notification that it should be used in the leather industry. It was further emphasized in the order of the Tribunal that it is for the assessee who claims exemption to establish the claim. The onus was on the appellants to show that the impugned products in question were not a functional commodity but an embellishment ordinarily used in the leather industry.
11. Respectfully, concurring with the ratio of the decision of this Tribunal in the case of Ashish & Co, and Ors. (supra), and in the light of the foregoing discussion, this appeal has to fail, and is dismissed.