2022 (8) TMI 885 - AT - Customs

Valuation of 125 consignments of imported toys - applicable tariff concession @ 43% under serial no. 427 of Part A of the notification dated July 22, 2005 or tariff concession @8% under serial no. 428 of Part A of the aforesaid notification? - HELD THAT - In order to examine the submissions made by learned counsel for the appellant that once the order of the Commissioner (Appeals) has been accepted by the Department, on an issue which is involved in this appeal, it would not be open to the Department to take a different view in this appeal. The records indicate that the adjudicating authority passed an order dated May 31, 2019 confirming the demand and rejected the contention of the appellant therein that higher abatement was correctly obtained - It is against this order dated May 31, 2019 passed by the Joint Commissioner of Customs that an appeal was filed before the Commissioner (Appeals), who by order dated September 29, 2021 allowed the appeal and set aside the order dated May 31, 2019 passed by the Joint Commissioner. There are substance in the submission advanced by the learned counsel for the appellant that once the order dated September 29, 2021 passed by the Commissioner (Appeals) was accepted by the competent authority on December 27, 2021, as is clear from the information made available to the appellant under the Right to Information Act, the Department cannot be permitted to take a different stand in the present appeal filed by the appellant. The order dated March 28, 2019 passed by the Principal Commissioner deserves to be set aside and is set aside - Appeal allowed.

Issues Involved:
1. Whether the 125 consignments of toys imported by the appellant were rightly assessed to duty by extending tariff concession @ 43% under serial no. 427 of Part A of the notification dated July 22, 2005, or whether they should merit tariff concession @ 8% under serial no. 428 of Part A of the aforesaid notification.
2. Whether the Department can take a different stand in the present matter despite having accepted similar orders by the Commissioner (Appeals) in other cases.

Issue-wise Detailed Analysis:

1. Assessment of Tariff Concession:
The appellant, M/s. Jatinder Sports, challenged the order dated March 28, 2019, by the Principal Commissioner (Customs), which confirmed the demand of differential customs duty of Rs. 7,013,900.85/- under section 28 of the Customs Act, 1962. The core issue was whether the imported toys were correctly assessed under serial no. 427 of Part A of the notification dated July 22, 2005, which allows a tariff concession @ 43%, or whether they should fall under serial no. 428, allowing only an 8% concession.

The Principal Commissioner argued that the toys did not fall under the categories specified in serial no. 427, and thus, the higher abatement was not justified. The appellant contended that the toys, including Train Series Toys, Rail Toy Series, and others, were covered under various sub-serial numbers of serial no. 427. However, the Principal Commissioner found these claims to be without merit, stating that specific categories such as electric trains with tracks, assembly kits for scaled models, and toy musical instruments were not met by the imported toys.

2. Consistency in Departmental Stand:
The appellant's counsel highlighted that similar orders denying higher abatement were set aside by the Commissioner (Appeals), and these decisions were accepted by the Department without further appeals. The counsel presented information obtained under the Right to Information Act, showing multiple instances where the higher abatement was allowed by the Commissioner (Appeals) and accepted by the competent authority.

The Tribunal considered the submission that once the Department had accepted the decisions of the Commissioner (Appeals) in similar cases, it could not take a different stand in the present case. The Tribunal examined a specific case of M/s. Ajay Impex, where the Joint Commissioner had confirmed the demand, but the Commissioner (Appeals) later set aside this order, stating that the adjudicating authority had not provided substantial evidence to deny the higher abatement.

The Tribunal noted that the Principal Commissioner's order in the present case was identical to the earlier orders that were overturned by the Commissioner (Appeals). The Tribunal cited the Supreme Court's decisions in Berger Paints India Ltd. vs Commissioner of Income Tax and Commissioner v. Indian Rayon & Industries Ltd., which established that the Department could not take different stands in similar cases once a decision had been accepted.

Conclusion:
The Tribunal found merit in the appellant's argument that the Department could not take a different stand in the present case after having accepted similar decisions in other cases. Consequently, the Tribunal set aside the order dated March 28, 2019, passed by the Principal Commissioner and allowed the appeal.

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