The division bench of the Delhi High Court in the case, Wishall International v. Union of India & Ors, held that Woman’s footwear without a back strap is “sandal” and therefore, such goods are eligible for customs duty drawback of 10%.
The petitioners claimed customs duty drawback on a consignment called “ladies leather sandals”.Special Investigation Bureau of the Customs in New Delhi,refused the claim by finding that woman’s footwear without a back strap is “chappals” and not “sandals”. Accordingly, order was passed against the petitioners by refusing customs duty drawback of 10% on export of sandals.
The petitioners vehemently contended that the opinion of the Leather Export Council was not based upon documentary appraisal but in fact after examination of the tests samples. According to them, the Council of Leather Exports itself is an expert body and routinely deals with articles including clothing and footwear and in a best position to appraise the goods in question. They argued that in rejecting this summarily, the FDDI’s opinion could not have been preferred. Furthermore,an opportunity to cross-examine and/or question the expert apropos the FDDI’s opinion was not granted to the petitioners, which would cast a doubt on the validity of the opinion itself.
Rebutting the above arguments, the Revenue submitted that the Court should not exercise its discretionary jurisdiction to upset findings of fact by using its writ jurisdiction. The question whether the articles were “sandals” or “chappals” should be left best to the judgment of the experts; in the circumstances of the case the goods were subject to scrutiny by experts and FDDI’s opinion was final in this regard. It was further submitted that the goods did not contain a strap at the back and were therefore, Chappals.
The bench noted that the opinion given in favour of the petitioner, by the Council, was of an expert body; it was however doubted. “As is apparent from the pleadings and the submissions that the trigger of suspicion that the petitioner had wrongly described the article, was because the article did not possess a strap at the back. Whatever be the reason, once the Council made its determination: based on inspection of the sample, and given that the opinion was based on objective material, there ought to have been something more for the FDDI to conclude that “We therefore, conclude that provided articles Fall under the category of ‘Chappal’ covered under Sl.No.64.10”.
“The respondents, in our opinion, acted upon prejudice and a preconceived notion that ladies sandals cannot be without a back strap. To hold so, there ought to have been some evidence of commercial purpose; the fact that the Council – a Central government body, which routinely deals with these issues in the context of export, had, based on evidence and instructions of the Government furnished an opinion that the goods were sandals and not chappals was deemed insufficient. Apart from these, the court wonders whether any of the experts in this case was a woman, the ultimate customers. In such cases, the commercial parlance test would predominate.”
Read the full text of the Judgment below.
