2020 (9) TMI 312 - HC - Customs

Classification of imported goods - BIRD SCARE DEVICE - classified under CTH84362900 or under CTH93040000? - restricted goods or not - rejection of self assessment - request for issuance of DDWC - HELD THAT - The de-novo proceedings itself is a continuation of the original proceedings commencing from the petitioner's self-assessed bill of entry for clearance of goods, the consequential show-cause notice, as well as the reply of the petitioner. Therefore, the proceedings of the second respondent which culminated into the order dated 17.03.2017, cannot be termed as de-novo proceedings at all, but a continuation of the original proceedings. As such, the second respondent ought to have considered the request made by the petitioner for issuance of DDWC. The first respondent herein while passing orders in the appeal, had remarked that there was no mention of the request of DDWC before the lower Authority and that the Appellate Authority cannot entertain a prayer on which no decision or order has been passed by the lower Authority. Such a statement cannot be sustained for two reasons. Firstly, there was a request made by the petitioner before the second respondent in the reply to the show-cause notice. No doubt, such a request could have been given by way of a separate application and not in a reply - Secondly, the first respondent was of the view that the appeal cannot be entertained on a prayer in which no decision or order has been passed by the lower Authority. As a matter of fact, the grievance of the petitioner before the first respondent in the appeal is that though they had made a specific plea for issuance of DDWC, the plea was disregarded and such a disregard was the basis for filing the appeal. There are no justification on the part of the Appellate Authority in deferring to consider the petitioner's request for the certificate, on the ground that there was no such prayer before the lower Authority. The goods are rightly classified under CTH93039000 - Insofar as the issuance of 'Demurrage cum Detention Waiver Certificate' is concerned, the petitioner is granted liberty to make a fresh application to the second respondent herein and on receipt of the same, the second respondent herein shall take into consideration all the observations made in this order and accordingly pass appropriate orders in accordance with law. Petition disposed off.

Summary

Issues:
1. Classification of goods under different tariff items
2. Request for issuance of 'Demurrage cum Detention Waiver Certificate' (DDWC)

Classification of Goods:
The petitioner filed a Bill of Entry for clearance of goods classified as "BIRD SCARE DEVICE" under CTH84362900, while the respondents argued for classification under CTH93040000. After various proceedings, the goods were reclassified under CTH85318000, which was later challenged. The Appellate Authority classified the goods under CTH93033, covering "Fire Arms and similar devices." The petitioner initially contested this but later agreed to the reclassification. The issue of reclassification was thus settled.

Request for DDWC:
The petitioner requested a DDWC in response to a show-cause notice, citing regulations that exempt demurrage charges on detained goods. Previous court orders supported such requests. The respondents argued that no request was made during de-novo proceedings, leading to the denial of the DDWC. However, the court found fault with this reasoning, emphasizing that the original request was valid and should have been considered. The court directed the petitioner to reapply for the DDWC, with the authorities instructed to consider the request and observations made in the judgment within twelve weeks.

Conclusion:
The judgment upheld the goods' classification under CTH93039000 and granted the petitioner the opportunity to reapply for the DDWC. The court emphasized the validity of the original request and directed the authorities to consider the request within a specified timeframe. The issues of classification and DDWC were addressed comprehensively, ensuring fair consideration and adherence to relevant regulations and court precedents.