ORDER
S.L. Peeran, Member (J)
1. This appeal arises from Or-der-in-Original No. 58/111/88 GR 5, dated 23-5-1998 passed by the Collector of Customs, Madras holding that the imported goods described in the Bill of Entry as “designer’s kit” was not covered in terms of the relevant entry relating to export product Group D 2.1 (ii) Appendix 17 of the above Import Policy which covers leather goods and other animal products and, under that heading, sub-heading (ii) covers components of footwear including shoe uppers (excluding components of canvas shoes) and (g) refers to “consumable tools, testing equipment, designers’ kit pre-punched cards used in leather industry and silver marking refills”.
2. The Commissioner has noted from the representative samples that the actual goods imported were colour pencils, leeds, filter tip pens, sharpeners, erasers, compases, rulers, protractors, french curves, lettering guides, templates, telescopic pointer, drawing boards, pens, compass accessory drawing inks, replicable drafting points and lead holders. He has noticed from the invoice and other connected documents that the goods are individually invoiced and supplied as such in individual packings and do not have any features for the purpose of identification and consideration as “designer’s kits” and used in leather industry. Therefore, he held that the subject import was not covered by the import license and rejected the appellants plea about the regular customs house practice to consider the item as ‘designer’s kits’. He also rejected the technical certificate issued by an institution like CLRI certifying that the consignment imported was for the purpose of design work in leather and leather products; that all the items imported in this consignment are essential for making design and achieving the required perfection of the final product. On the other hand he has given his own finding on the ground that the individual items are separately invoiced and priced and hence the item cannot be considered as ‘designer’s kit’ for use of designs in leather products, leather goods, especially for making the goods. Although he has admitted that they are being used for the said purpose but has rejected the certificates on the ground that the certificate were clearly mentioning that the equipments are useful in other fields also. He has drawn to a conclusion that the certificate do not specifically mention that the item is required only as leather designer’s kit and hence rejected their evidence and held them to be not so. Therefore he has held the item be confiscable under Section lll(d) of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports (Control) Act, 1947. However he has granted release on payment of fine of Rs. 6 lakhs. In view of the past customs practice of considering the item as ‘designer’s kit’, he did not propose to impose penalty.
3. The ld. Counsel, Ms. Meenakshi at the outset submits that the technical opinion given by a Govt. institute like CLRI cannot be rejected and Commissioner has drawn his own conclusion pertaining to the items merely on the ground the item were separately priced. She submits that these certificates are genuine certificates, which were not contested by the Commissioner, and he cannot reject the experts opinion and certificates issued by them. She also refers to the brief report of the joint meeting held on 26-8-1987 in the Office of Joint Chief Controller of Imports and Exports considering these items to be as covered under the definition of ‘designer’s kit’.
4. She submits that the Prof. & Head of the Department of Statistics, Dr. K.N. Ponnusamy of University of Madras has also given a certificate confirming these to be designer’s kit for use by the architects, draftsmen and industrial designers and for drawing and drafting purposes besides use for computer aided plotters for drawing circles, curves, maps, etc. She also refers to the certificate issued by Dr. V. Thangaraj, M.Sc., Ph.D. of the Ramanujan Institute for Advanced Study in Mathematics, University of Madras who also gave a certificate that the items is designers item and they are also used by draftsmen and industrial designers for drawing purposes. Therefore, these evidence cannot be rejected in terms of the Custom House practice as it is ‘designer kit’. She relied on the judgment rendered by the Bombay High Court in the Gujarat State Export Corporation Ltd. and Anr. v. Union of India and Anr. -1984 (17) E.L.T. 50 (Bom.) who have clearly laid down that the past practice of the Customs House cannot be ignored and goods confiscated and such confiscation is against law. Further, reliance was placed on the same proposition laid down by the Bombay High Court in Godrej and Boyce Manufacturing Co. Pvt. Ltd., Bombay and Anr. v. Union of India and Ors. as reported in 1984 (18) E.L.T. 172 (Bom.), Sandip Aganoal v. Collector of Customs as reported in 1992 (62) E.L.T. 528 (Cal.) and that of Mercantile Express Co. Ltd. v. Assistant Collector of Customs and Others as reported in 1978 (2) E.L.T. (J552).
5. The ld. Counsel also pointed out that the Tribunal in the case of Raja Bahadur Motilal Poona Mills Ltd. v CCE, Pune -1998 (99) E.L.T. 62 (T) has decided the issue of classification of goods and its parts and held it to exemption granted under the Notification No. 71/86, dated 10-2-1986 and further held that the exemption is available to drawing and mathematical instruments. She also referred to Bombay High Court judgment rendered in the case of Nibs India v. UOI -1990 (49) E.L.T. 337 which also decided the classification and grant of benefit of Notification 71/86 Cus., dated 10-2-1986 with regard to drawing and mathematical instruments.
6. Ld. DR reiterates the departmental view and submits that the items were individually invoiced and billed to separate value and therefore they cannot be considered as Designer’s kit as it was not in kit form. He referred to Appendix I – Part B of Import Policy, Sl. No. 53 which refers to “Designer’s kit consisting of designer’s knife, shoe measuring tape, designer’s tape, and satra vacuum former (only 5 kits in a year can be imported by one unit)”.
7. On a careful consideration of the submission made by both the, sides, we see lot of force in the submission made by ld. Counsel in this matter. The item has been clearly described as ‘designer’s kit’ and total valuation has been shown in the Bill of Entry. They have also produced catalogue and literature besides producing certificated from experts to show that the items is nothing but ‘designer kit’. Besides the two certificates issued by the Professors of the University of Madras another certificate from the Scientist in-charge of technical forum i.e. Dr. K. Satish Babu of CLRI, dated 12-4-1988, has been produced which clearly certifies that the item is a ‘designer’s tool’ and he has certified that it is required for designing leather items in their institute.
8. The ld. Commissioner cannot ignore these vital certificates and draw adverse inference on his own based on presumptions and assumptions. The technical evidence is vital for determining the use of the item in question. One of the experts especially CLRI has certified the item to be a ‘designer’s kit’ used within the leather industry. Therefore the Commissioner rejecting the vital evidence and the past practice of the Custom House to accept the items as ‘designer kit’ is not proper and correct. We notice that the judgment Raja Bahadur Motilal Poona Mills Ltd. v. CCE, Pune (supra) and Nibs India (supra) does not deal with the facts in issue pertaining to import license, but it deals with the classification under Customs Tariff Act and grant of benefit of customs duty under Notification No. 71/86 Cus., dated 10-2-1986 as amended by No. 164/Cus., dated 1-3-1986. Further the judgment cited regarding past practice to be accepted for grant of benefit clearly applies the facts of the case. Therefore the Commissioner was not justified in not following the judgment as well as the technical literature, catalogue and the certificates produced by the importer especially the certificate issued by CLRI to show that the items is a ‘designer kit’. The Commissioner has not disputed the correctness of the certificates but on his own presumption and assumption has held that as the item is capable of use in other fields and the item is not covered by Appendix 17. We are not impressed with the findings recorded by the ld. Commissioner as all the experts have clearly certified that the item is used in leather industry, as a ‘designer’s kit’ for the manufacture of leather and leather products as described under Appendix 17(D)(ii)(g).
9. In view of the appellants having a strong case on merits, as analysed by us and in the light of literature, evidence and citations produced, we hold that the impugned order is against law and thereby the same is set aside by allowing the appeal with the consequential relief, if any.