2017 (9) TMI 949 - HC - Customs

Maintainability of appeal - alternative remedy of appeal - classification of goods - question of fact - Held that - whether the projectors imported under the bill of entry dated 24.09.2007, about which the adjudication reached finality before the CESTAT, are exactly the same as the projectors imported during the period from 2011-2016, which form the subject matter of the present dispute, is a question of fact - This question of fact cannot be decided solely or principally on the basis of the decision of the CESTAT, dated 01.09.2010. In other words, the impugned order cannot be attacked solely on the ground that it did not simply follow the decision of the CESTAT dated 01.09.2010. Once this is clear, it is not possible for us to allow the petitioner to bypass the alternative remedy of appeal. The impugned order can be attacked on findings of fact by the petitioner only before the regular appellate authority and that this is not a case warranting the bypassing of the alternative remedy of appeal, on the ground that the issue is already clinched in favour of the assessee. Therefore, the writ petition is liable to be dismissed - petition dismissed being not maintainable.

Summary

Issues Involved:
1. Classification of imported projectors under the correct Tariff Item.
2. Validity of the Order-in-Original passed by the 2nd respondent.
3. Applicability of the previous CESTAT decision.
4. Availability and bypassing of alternative statutory remedies.
5. Distinguishing features of the current dispute from the previous case.

Issue-wise Detailed Analysis:

1. Classification of Imported Projectors Under the Correct Tariff Item:
The petitioner challenged the classification of imported projectors under Tariff Item No.85286900 instead of Tariff Item No.85286100, which resulted in the denial of exemption benefits under the notification dated 01.03.2005. The dispute centers around whether the projectors are "of a kind solely or principally used in an Automatic Data Processing System (ADPS)" as per Tariff Item No.85286100 or fall under the "Other" category in Tariff Item No.85286900.

2. Validity of the Order-in-Original Passed by the 2nd Respondent:
The 2nd respondent issued an Order-in-Original on 28.03.2017, rejecting the classification under Tariff Item No.85286100 and reclassifying the projectors under Tariff Item No.85286900. The petitioner contended that this order overreached the previous quasi-judicial order by the Tribunal, which had already classified similar goods under Tariff Item No.85286100 in 2010.

3. Applicability of the Previous CESTAT Decision:
The petitioner argued that the issue had already been settled by the CESTAT in 2010, where the Tribunal held that the projectors imported under the Bill of Entry dated 24.09.2007 should be classified under Tariff Item No.85286100. However, the court noted that the previous decision was based on the evidence available at that time and emphasized that the classification must be determined based on the specific technological features and usage of the imported goods.

4. Availability and Bypassing of Alternative Statutory Remedies:
The court acknowledged that the petitioner had a statutory alternative remedy of appeal to the CESTAT under Section 129A (1) of the Customs Act, 1962. The petitioner bypassed this remedy, arguing that the issue was already covered by the previous Tribunal order. The court, however, emphasized that the nature of the entry under the relevant tariff heading required an enquiry into each import's specific facts, and the petitioner should not bypass the alternative remedy.

5. Distinguishing Features of the Current Dispute from the Previous Case:
The court identified two key distinguishing features:
- The previous CESTAT decision related to imports made in 2007, while the current dispute involved imports from 2011 to 2016. The court noted that technology evolves, and the specifications of the imported projectors might differ.
- The current investigation included evidence from the Indian counterparts of the manufacturers, which was not available in the previous case. This evidence indicated that the projectors could be used independently without ADPS, supporting the classification under Tariff Item No.85286900.

Conclusion:
The court concluded that the impugned order could only be challenged on factual findings before the regular appellate authority, not through a writ petition. The court dismissed the writ petition, allowing the petitioner to file a statutory appeal and directed the Tribunal to exclude the period during which the stay was in operation for computing the limitation period. The court also provided interim protection for two weeks to enable the petitioner to file an appeal.

Final Orders:
The writ petition was dismissed with liberty to file a regular statutory appeal. The Tribunal was directed to exclude the period from 07.06.2017 to the date of the court's order for computing the limitation period. The court also granted interim protection for two weeks to enable the petitioner to move a statutory appeal.